KSCAA - Residential Course - RERA Enabler Program - SJ.pdf

Sandeep814482 82 views 28 slides Sep 24, 2024
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About This Presentation

RERA Best practices for promoters


Slide Content

2-Days Residential Course - RERA Enabler Program

2-16 of RERA: Best Practices to be
followed by Promoter

Serio

Index

RERA: Present-day Report Card

Who is a Promoter?
larketing Practices
: Agreement for Sale
lodification of Sanctioned Plans and Projects
transfer of Real Estate Projects
Section 16: Insurance

Glossary

‘Annexure

| RERA: Present-day Report Card

= Projects —No of projects registered!

Rajasthan —

= Projets 1725 Cases = No of cases dsposed by Authority
Cases - 1844
po
Projects - 5580 Projects - 3519
Cases - 5694 Gujarat Cases - 44602
== 7

Cases - 4865

Maharashtra

Projects - 42204 Andhra Pradesh

Projects - 3900

Cases - 1070

Cases - 15423

Karnataka Cases - 228

Projects - 18915

Total No - Cases
Cases - 2920 disposed by
Authority

As per RERA Implementation Progress Repot (as on November 28, 2023 released by MoHUA

Who is a Promoter?

Aperson who develops land into ';
i | aproject, whether ornothe ;
| constructs structures on any of the}

lot, for sellin j

Aperson who constructs an
independent building or
apartments for purpose of selling

‘An apex State level co-operative

! housing finance society and a
— primary co-operative housing
‘society which constructs apartments

Any development authority or any other
public body in respect of

(a) buildings or apartments constructed or (b)
plots, for purpose of selling H

or buildings for its members

‘Any other person who acts himself as a builder,
coloniser, contractor, developer, estate
developer or by any other name or claims to be
acting as the holder of a power of attorney from the
‘owner of the land on which the building or apartment
is constructed or plot is developed for sale

‘Such other person who constructs any
‘—4 building or apartment for sale to general
public

In case of JDA, Maha RERA' and Kamataka RERA?
have clarified that such individuals/ organisation who

Where a person who constructs or develops
fall within the definition of the term "Promoter" on

and person who sells the apartments or plots
are different, both shall be deemed to be
promoters and jointly liable for functions and
responsibilities

account of being landowners or investors, shall be
specified as such, at the time of online registration.
Liability of such investor or landowner shall be as per
JDA terms

! Maha RERA Circular No 12/2017 dated December 4, 2017
2 Circular No: KRERA/ Circular 03/2019 dated October 31, 2019

Section 12 - Marketing Practices

Section 12: Obligations of Promoter regarding veracity of advertisement or prospectus

Any person makes advance or He dk
deposit basis Information [sustains any EEN atfected person, intends to
contained in Notice, [loss or damage] [wind trom the proposed project he shall be
Advertisement or m by reason of any
Prospectus, erect) LH a
included therein, the manner provided
Model Apartment, Pot or he shall be XIE by the Promoter A

Building as provided under his Act

"Advertisement" has been widely |
defined to mean any document = Compensation to be determined taking Into account, loss/
described or issued as advertisement 4 damages

through any medium and includes
any notice, circular or other — Loss/ Damage to be substantiated by aggrieved person
‘documents or publicity in any form,
informing persons about a real estate

Project, or offering for sale of a plot,

building or apartment or inviting State Rate of interest payable as Timeline for ]
persons to purchase in any manner Per State Filles! ral
Such plot, building or apartment or to

make advances or depos for such Punjab SB! highest MOLA plus 2 percent 90 days

purposes [Sec 2(0)]
Karnataka ‘SBI highest MCLR plus 2 percent 60 days
Prospectus" means any document =

DSP a ac esa pm Macia radosn Soest MCLR pus 2 ros sodas

or any notice, circular, or other
‘document offering for sale of any real Mutually agreed contractual rate of interest. If
estate project or inviting any person Gujarat no contractual rate, then SBI highest MCLR 45 days
‘to make advances or deposits for plus 2 percent
such purposes [Sec 2(2)]

Delhi ‘SBI highest MCLR plus 2 percent 45 days
Maharashtra SBI highest MCLR plus 2 percent 30 days

Section 12: Developers under scanner for RERA marketing violations

Refund ENTIRE INVESTMENT + INTEREST Wen

as

Chandra Shekar Singh vs Kul Developers (P) Ltd
Regulator could award compensation and interest|

rn
i which was the lig in of the municif , if rt in: shure, ik
Refund ENTIREINVESTMENT+ COMPENSATION +INTEREST US), | | wchwas e eauion one muncpalcoporas rindas bec, woulsbe

JL

Refund along with interest and compensation to be paid from the day it
becomes due

( UW Ani () (Limited ve Sho Pun Engineers Private Limited

Chhattisgarh HC upheld contravention of Section 12 where swimming pool shown in front of
residential project in brochure picture was not constructed, although it was not mentioned in

features on brochure document

"Becomes due" to be interpreted as per Section 18(1) of the Act which,
refers to liability of promoter "on demand" by the allottee (in situations.

Vivek Arjun Naik Tulaskar and Vina Vivek Naik Tulaskar vs Sunstar Homes

where Promoter fails to complete or unable to give possession and
allottee wishes to withdraw from project) H

GOA RERA held Protomer liable to compensate for non-provision of Solar water heater
mentioned in the brochure although not provided in AFS (INR 3 lakhs within 60 days from
date of passing order)

Key

Indira Chauhan vs Lucina Land Development Limited

MAHA RERA held compliant maintainable under Section 12 for depriving amenities promised,
even where allotees opt to continue in project after change in project, as builder cannot
withdraw amenities unilaterally

"intros to be computed a per State Rubs

Section 12: Marketing Recommendatory Practices for Promoters

Photographic representations should
be accurate. Examples of undesirable
photographic advertisements:

Water view or scenery, placed next to
a photograph of an apartment, makes.
it dificult to ascertain whether the
water view or scenery can be seen
from the apartment or whether itis a
“location shot"

Beach scene with the wording
“minutes to tis" or “stroll to beach"
‘does not give a clear indication of the
distance from the property

Faclties (such as shopping malls,
swimming pool, club house, schools,
transport etc) pictured in brochures but
do not exist

Photoshopped landscape and views or
picture enhancements which are
misleading

Please refer Annexure for illustrations

Sanitizo marketing collaterals)
brochures eto Precise,
Accurate, Correct and aignedto (Y)

Saleable area related
specifications in the marketing
collaterals to mention "Carpet.

Usage of marketing phrases such as:
= 10:minutes drive from International Airport (at what

= Expressions such as First Ever, Whole new breed

= Best/ largest real estate project inthe city locality

requirements under RERA ‘Area’ as per RERA time?)
provisions
Accurate testimonials to be used real ans OS (who awarded?)

ranges, if advertised to be backed
by external agency reports.

Representation on future events to
be on reasonable grounds.

(take writen conrmations,it 4,
possible) and careful use of
adjectives such as best, frst ete

= Best located (who certified?)
= World class amenities (what is world class - very
subjective and dificult to substantiate)

- Fully loaded Gymnasium (what is fully loaded, very

Mention what would be delivered Sour cu
fenton what would be delivere - 5 Star Clubhouse (what i 5 tar subject
1 neu wal-detned product Model Sample Apañments = © Invctnentotbed (a cafed?)
typology. Specification in the AFS ‘Acvisable to show unfurnished a à ho carted
should match with marketing sample flatsto customers aswell ~ 90 Percent appreciation in 2 years (who certified,
i a any underlying data?)

O = Assured rentals (is it real?)
= Last few apartments left Limited Edition (does
‘booking data suppor this statement?)
PL nee ee Ara)

Milo.

Disclaimers!
that

provide any

advertisements done through any

"As pr Kamatea advertisement guidlines (Cheer
did November 1 2019, a isclaimor cause
{ammo montoned at man Sa to
Grange

Section 13 — Agreement for Sale

Chronology of events to stay inline with provision

AFS

Customers

AFS in State rules vis-à-vis model AFS

Advance/ Booking amount >10% of

lost of apartment/ ploY bul revail [As per

Article 254 of Indian Constitution]

Also, held in the case of Vinod Kumar Aggarwal vs Jaipur
Development Authority (Rajasthan RERA)

Particulars of

development of

project, construction of
building and
apartments

Date on which
possession is to be
handed over

Dates and manner by
which paymel
be made by

internal development
jorks and external

tw

Register AFS under applicable State law
mA Promoter

‘Agreement for Sale is.
‘compulsorily,
registrable under
RERA, although Indian
Registration Act, 1908
doesn't mandate
registration of
‘Agreement for sale

~The Developer needs to accept payments rom Alotees only by crossed account payee cheques or Demand Drafts or trough internet banking such as ATGS/ NEFT/eCMS in view of Section 26958 of tho IT Act. Similar retunds on

cancolatn of alotments, any, should be made through the same channels to comply with Section 2687 of tho IT Act

Section 13: No deposit or advance to be taken by Promoter before AFS

No limitation of
rights under AFS

‘Any application letter allotment
letter, agreement, or any other

‘document signed by allottee, in respect

of apartment, plot or building, prior to
execution and registration of AFS,
shall not be construed to limit
rights and interests of the
allottee under AFS

AFS - Key Considerations

Registration of AFS
Mandatory

+ Mufazzal Y. Kapadia & Anr vs.
East 8 West Builders (National
Consumer Disputes Redressal
‘Commission New Delhi]

+ Priyesh Ashok Vijaywargi vs
Vikram Prakashrao Takale
(Maharashtra RERA
Authority)

Prescribed
particulars
mandatory in AFS

all particulars in line with the

Auto India Private Limited vs
‘Oberoi Constructions Limited,
‘Maharashtra RERA]

Recommendations in Regional Workshops

/AFS should compulsorily contain

Maharashtra RERA Rules [Asset

Modifications/
deviations from
model AFS

+_AFS can be modified and
adapted in each case having
regard to the facts and
circumstances of respective case!

+ Any clause found contrary to or
inconsistent with any
provisions of the Central
Act, Rules would be
void ab-initio!

| States may be advised to lower registration |

fee of AFS to encourage registration

"Explanatory Note to Maharashtra Model AFS.

| Stamp duty/ registration fee paid by home buyer
i may be adjusted at the time of registration of

i | sale deed to avoid double cost, ensure

| compliance and safeguard home buyers’ interest

Section 13: Agreement for Sale

iculars
Particulars of development of project

Details of construction of building, apartment along with speci
development works and external development works.

ion, internal

Dates and manner of payment towards cost of apartment
Date on which the possession of apartment is to be handed over

Rate of interest payable by promoter to allottee in case of default by promoter
(rate of interest as per respective State Rules)

Rate of interest payable by allotee to promoter in case of default by allottee
Other Specifications (Schedules):

Specifications, Amenities, Facil

ies (which are part of the apartment/ plot)
Specifications, Amenities, Facilities (which are part of the project)
Description of entire property

Details of Common Area

Allottee's right to visit project site to assess extent of development of project
and his apartment/ plot

Provision for not charging new imposition/ increase in development charges
after expiry of scheduled date of completion of project from the allottee

Provision for providing rebate to allottee for early installments

Chandigarh

NS IS ES K

ES

*

NN ES

Karnataka
Y

SN Rn.

D ES HIS

Kerala
Y

NM ES

TN

CN KE

NO NN NN

*

*

Maharashtra
Y

NN

SSK A

E

Alterations and addition:
Consent mandatory

‘common areas

‘Addition to area
‘Change in height
Removal of building
‘Change in structure
Construction or removal or cutting
into any wall or part of wall,
partition, column, beam, joist, floor,
mezzanine floor or other support
+ Any change to or closing of any
required means of access ingress.



+ Additions/ alterations to apartment, plot
or building agreed to be taken by
allottee — previous consent of allottee
‘mandatory [not qualified by "written"

+ Other Additions/ alterations to building
or common areas within the project —

or egress
previous written consent of at least + Change to the fixtures or
two-thirds of allottees equipment

Minor alterations and additions - No consent
+ Change required by the allottee
+ Necessary due to architectural and structural reasons by Architect and Engineer

Allottee cannot withdraw consent given for alteration/ additions —
‘Sunil Wadhwani vs Pashmina Realty Private Limited [Maharashtra RERA]

%

States Inter alla including Karnataka and Maharashtra have
provided proforma for obtaining consent from allottees

Promoter not permitted to alter the approved sanctioned plan, layout plan and
specifications and and the nature of the fixtures, fittings, amenities and

El
<A

Promotor to provide the specific fixtures, fittings
and amenities already agreed with homebuyer

SC ordered to demolish Twin Tower built, wherein one of the
reason was violation of sanctioned plan (Section 5(2) of UP
Ownership of Flats Act, 1975] - Supertech Ltd vs Emerald Court

Amount
payable to

Builder not entitled to make changes without consent &
buyer can't be forced to take possession of space with
major changes. Allottee can withdraw - Kulbhushan Soi vs
Barnala Builders [Punjab RERA]

Blanket consent at the time of booking or executing AFS not

consent for Section 14 of the Act. Information of proposed

changes with full disclosure of underlying exact and MCLR +
ic expected changes is necessary — Dilp J Mehta vs 2%

Jar Developers & Ors [Maharashtra RERA]

Interest

Consent to be “informed”, explicit and applicable to the
developer's intended project or scheme [Section 7 of MOFA
1963] - Madhuvihar Cooperativ 9 and others vs
Jayantilal Investments and Others [Bombay HC] Referred in Di
Mehta (supra)

Section 14: Defect Liability

Liability for structural defects

Structural defect
Defined under Rule 2(u) of Haryana Real Estate (Regulation and Development) Rules, 2017 to inter alia m

“actual physical damage/ defects to the designated load-bearing elements of the building, apartment or unitike faults, breakage
+ Defect in workmanship ‘or cracks, appearing over time in elements such as load bearing columns, walls, slabs, beams etc which can affect strength and
stabiliy of the apartment or the building and shall include following:

Defects due to design attributes of reinforced cement concrete or mild steel elements
Defects due to faulty/bad workmanship of RCC or MS work
‘Major cracks in masonry work

‚Any defect established to have occurred due to negligence, use of inferior materials or non-adherence to regulatory
codes of practice by the promoter”

fide connotation of "defects" under the
Act to include:

Could be discovered |
bynomal |

‘examination or
testing (roof leak,

Points to Ponder

+ 5 years from (a) Date of possession of respective unit OR (b) Date of possession of all units in the
apartment OR (c) Date of handing over common area to association of allotees?
+ Are 30 days enough for rectification?
Allottees to bring notice of defect within 5 years from date of
handing over possession’ + Who decides whether "defects due to structural design faut or poor construction? Structural
engineer or architect or contractor or developer?

Duty of promoter to rectify defects without charge within 30 days

= = — + Allttees to include subsequent purchasers too [Section 2(n) of RERA] ? 5 years to be reckoned
On promoter's failure, aggrieved allottee entitled to from possession by first allottee or subsequent allottees as well?
‘compensation

+ Once original allottee transfers possession, can they claim to be allottees entitled to compensation?
Held NO in the case of Jaikishan Udhav Lakhwani, Rahul Raju Lakhwani vs Kanakia Spaces Realty
Pvt Ltd (Maharashtra RERA)

Section 14: Defect Liabilities in model AFS

Tamil Nadu Telangana Goa

1 Clause 9: Defect liability Clause 12: Defect liabi O Clause 7.4: Detect liability
+ Only structural defect excludes defects with
covered. No specific inclusion respect to - Excludes:
of defects in workmanship or Equipment (lts, generator, + Cracks, dampness, or any
quality or provision of service motors, STP, transformer other defects within or to
gym equipment eto) which adjoining apartments due to
Excludes: carry manufacturer's work carried out by allottee
Defects due to commission guarantees for a limited after possession
omission of allot period + Hairline cracks and
Damages caused by act of Fittings related dampness caused due to
god/ natural calamities settlement, humidity,
Willful or accidental damat etc having natural wear and variations in temperature,
caused due to tampering by tear electrical conduits
allotee Allowable structural and other
Plastering hairline cracks deformations including O5 years period from date of
»pansi handing over apartment to Defect liability to be co-terminus with
S-years period from date of Work such as painting subject allotee (similar to Central Act) manufacturer warranty
intimating readiness to towear and tear
handover apartment Timeline for rectifying defects Defect o be limited to structural defect and
o pod] for workmanship it maybe 1 year from date.
of completion certificate

Certificate instead of possession date

Timeline for rectifying defects 2 5-years period from date of
not provided handing over possession

ano Cana Consent of financial institutions also be
(similar to Cent )

taken for change in specifications of
project

No remedy/ compensation if
defect not rectified

| secion 14: Best practices by Promoter for Structural Defect Liability

Warranty coverage to be
made a mandatory and
indispensable consideration for
vendor selection e

5-years warranty post
possession to end customer

would mean > 5-years warranty @,
‘coverage from suppliers/
service providers (including

‘gestation period for completion.

of construction and handover)

Back-to-back warranty
‘agreements with contractors!
suppliers/ service providers to.

pass on monetary risks of defect,

liability

mI

‘Apart from going by the rulebook on
construction engineering, Developer
may need to keep a check
(supervision) on contractors! sub-
contractors (and related agencies)

Separate Annual Maintenance
Contracts could be entered into

Contractual Risk Transfer -
for mitigating financial risks

Insurance coverage
at all phases prior to handover by (Construction/ Inherent
them defects) + Written contract of
e e requiemenis/ responsible
e accountabilities +
Starting from the contract to execution Indemnification agreements.
tre aly handing oer,

documentation (clear roles and
responsibilities, check and
o Reflection of increased costs
felinquent at a later stage) has to (if any) due to structural defect
Clearly spelled out, also include @ “hero on overall
Itigation mitigation approach in project costs
supplier q

@ Technical Audits cous bo
card out throughout
construction period and beyond
{Schedule regular defect
inspections to become more pro-
active rather than re-active]'

‘Manarashra PERA proces or stone

he ly aaa sey a

Procedure for processing and incorporating modified plan sanctions - Karnataka RERA!

Promoter needs to apply to Karnataka RERA through web portal for
processing the application. Processing of application to be considered if
registration has already been granted under RERA

Modified sanction plans and layout plans approved by Jurisdictional
Planning Authorities to be uploaded on web portal

Submission of consent of 2/3% allottees as per prescribed format © Status of completion of development of works and pending works

Details of any changes in common
amenities, facilities or building layout area

Consent of landowner in case land belongs to others, such as in
the case of JDA

‘Submission of affidavit and declaration Changes in project end date due to modification
from Promoter in presoribed format in sanctioned plan

‘Submission of structural stability certificate
and certificate from Project Engineer &
Architect in prescribed format

Complied with post registration filings and
quarterly updates of project

electror

Prescribed fee to be p ally - 50 percent of original registration fee where no addit

‘Circular No K-RERA/Engg.SecModiñed Plans/2019 dated June 24, 2020 issued by Kamataka RERA

2
HZ

CASA

ae

Section 15: Obligations of promoter in case of transfer of real estate project to a third party

No of
Promoter not permitted to o tr
tarte EL. —- Written approval Written consent of Computing number of allttees ALLOTTEE
rights and liabilities m = of Regulatory REG ue Natural person booked single or many apartments | 4
E ad expect Promoter
estate proc Authority in his name/ name of his family

E gg Artificial persons booked apartments initsname | 4
eo a Ball or in the name of associate or related entities

Could be interpreted as > 50 percent, therefore can Promotor

transfer rights and lables < 50 percent without consent +
approval of 2/3% altes w
Obligations of intending promoter
Responsibility of promotor is wide under Section 11(4)(a), = QE)
Therefore, cannot escape liability even on ta een) |
ears Geo Sy pening responsibilities and
Promoter Promoter obligations of erstwhile promoter ie
y 2 jing it complete leads
2 | M Ces
a B 2 extension for time-period of breach or
+ Change in internal shareholding/ constituents of Promoter organisation that does not affect ‘mentioned in project documents delay iss Per act)

obligations and liabilities with respect to allottees and rights and liabilities of Promoter's
organisation

+ Any conversion of Promoter entity under statue of partnership firm into LLP/ PLC or PLC or
Unlisted Company to LLP or otherwise or proprietorship changes by succession to legal heirs.

Maha RERA' and Karnataka RERA? have notified formats
+ Amalgamation, merger or demerger not regarded as transfer under Section 47 of IT Act of application for change in promoter to be submitted for

+ 75 percent shareholding remain same in resultant company =

‘Oe No 24/2019 dates June 4, 2009
Gear No KRERA’Gieér 2/2019 dated August 27,2019

| secion 15: Obligations of promoter in case of transfer of real estate project to a third party

\ 1 n 4
\De 1 |, Merger/ Demerger not regarded as 7
eee Ger

"Circular No 24/2019 dated June 4, 2009 & Circular No 11/2017 dated November 8, 2017, issued by Maha RERA | Circular No KRERA/ Circular 2/ 2019 dated August 27, 2019, issued by Kamataka FERA

Section 16 — Applicable Insurances

Section 16: Insurance

Post obtaining certificate for registration

of project, Promoter obligated to obtain
insurances in respect

+ Ctiof land and building

+ Construction of real estate project

ransfer of Insurancı

+ Insurance automatically stand
transferred to allottees or association
of allottees on date of execution of

sale agreement

Documents relating to insurance to be
handed over to association of
allottees on its formation

+ Any other insurance as may be
notified by State Government

Points to Ponder

Title Insurance Majority States are yet to notify enforcement of this

section, except for few sates including Maharashtra

Premium on insurai

+ Responsibility to pay premium and
other charges lies on Promoter Lack of digital infrastructure to access land records
Provides indemnification for title defects even pose a barrier for implementing tt
prior to policy inception date . al pending dues of premium to be
before transferring insurance to
Insurance Companies are resistant to develop nie of lotus
title insurance due to voluminous title disputes

and substantial cost for land due diligence

Working Group Committee of IRDAI has suggested

Title insurance ensures litigations are avoi 2 insurance product structures & coverage: ‘Appropriate "land ttle insurance" product not available
for timely completion of projects = Promoter Legal Expenses (Defence Cost) Policy in the market yet

= Allottee/ Individual Buyer Retail Policy

[acer

Abbreviation Description Abbreviation Description

AFS Agreement for Sale NEFT National Electronic Funds Transfer
AP AndhraPradesh No Number
Co Company PE Fund Private Equity Fund
ecMS Electronic Cash Management Services PLC Private Limited Company
HC High Court RCC Reinforced cement concrete
INR Indian Rupee RERA Real Estate (Regulation & Development) Act 2016
IT Act Income Tax Act 1961 RTGS Realtime gross settlement
WA ene SBI State Bank of India
JDA Joint Development Agreement sc ‚Supreme Court
LLP Limited Liability Partnership. SPV Special Purpose Vehicle
Maha RERA Maharashtra Real Estate Regulatory Authority IN EE
MCLR Marginal Cost of Funds Based Lending Rate UT Union Territory

MOFA Maharashtra Ownership Flat Act
MS work — Structural Mild Steel

MoHUA Ministry of Housing and Urban Affairs

Sometimes the weather is not great, or the only time professional photos can be scheduled is when it is overcast
and cloudy. It is also common knowledge in real estate that the dusk shots and sunny days present the best in
advertisements. It should be okay to use image enhancement to replace sky backgrounds whenever the weather
is not ideal. Image enhancements which include brightness and contrast adjustments, lawn enhancements, sky
replacement, landscaping, etc needs careful consideration to ensure that it does not make the advertisement
misleading

“lustrative only

y Practice

Spaces that are empty are replaced to make the listing more appealing. The main thing to remember when
virtually renovating or staging a property is to include a disclaimer and/ or the ‘before’ photos.
Full disclosure is the best thing to do it you're ever unsure if an image could be considered deceiving.

“lustrative only

ro — Marketing Recommendatory Practices’

Include a disclaimer that some of the features are digitally included to represent the final outcome

“lustrative only

‘Sandeep Jhunjhunwala
Partner, M&A Tax and Regulatory

‘Sandeep currently leads the Corporate and M&A tax practices of
Nangia Andersen in Bengaluru, India and the Emerging Laws
practice ofthe Firm nationally. Sandeep has spent more than 17
years working with Big 4 Accounting Firms in their tax and
regulatory practices. He specializes in the areas of corporate
international tax with expertise in strategic transaction advisory,
cross-border tax structuring and controversy management. He also
works closely with Regulators and Policy Formulators, in providing
inputs to aid in the development of new regulations. He has worked
(on a number of leading multi-national companies in Information
Technology, Communication, Real Estate, Pharmaceuticals and e
commerce Sectors,

‘Sandeep has been an eminent speaker and panelist on tax and
regulatory matters at various forums. He is a regular columnist and
has written several articles and contributed podcasts on tax and
regulatory matters. Sandeep has also authored a book on Real
Estate (Regulation and Development) Act, tiled Decoding RERA,

Bergati@nangia andersencom