Encroachment of Property: How to handle it?

[ecis2016.org] Encroachment is a very serious issue in India. Here is what the law says about it and how to handle it in a legal way or settle it out of court

Property encroachment is a serious concern in India. Civic authorities across India are finding it difficult to curb this menace. It not only puts additional pressure on infrastructure but also increases the burden on the Indian legal system. While property owners are mostly caught unaware, when their property is encroached upon, handling such cases requires an abundance of caution and legal help.

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What is encroachment meaning?

Encroachment is a situation where a person violates the property rights of the owner. It could mean putting up a structure in someone else’s property or land. Usually, vacant or unattended properties are easy targets for property encroachers. Encroachment is usually intentional, where a person chooses to violate the boundaries of the property owner’s property or land, knowingly.

Example of encroachment

One of your neighbours renovating their home in a way that a part of their property extends into your area, is an example of encroachment. This could be a balcony area that encroaches into your parking space or terrace. It could also be an extension of any other area over your terrace, which may or may not hinder your ventilation.

Property encroachment laws in India

As per Section 441 of Indian Penal Code (IPC), 1860, encroachment is said to have taken place, when someone illegally enters the property that belongs to another person, with the intent to commit an offence or threaten any person in the possession of such property and remain there illegitimately. The penalty for encroachment is provided under Section 447 of the IPC and it includes imprisonment of up to three months and/or fine of up to Rs 550. If you want to deal with encroachment in a legal way, you should approach the court as per Order 39 (rules 1, 2 and 3) for an order of injunction and claim damages.

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Ways to deal with encroachment

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How do you deal with property encroachment?

There are multiple ways in which you can handle property encroachment issues. Here are some of the easier ways to take care of the situation:

Mediation

This is the ideal and easiest way to handle the issue. During the process, carry the property papers to prove your case and put your point across, amicably. You may be able to settle the issue out of court and this will save both parties some legal fees.

Selling the property

You could consider selling the property to the encroacher, so that you get your worth for the encroached property.

Sell and divide

If an encroacher refuses to vacate the property, then, the parties can sell the property and divide the money, depending on the share. Expert guidance is usually sought in such cases.

Renting out the area

If the encroacher does not want the legal ownership of the property but wants it for a certain period of time, then, you can rent out the area to the encroacher or allow them to use your property for a certain period, in exchange for money. Make sure the legal settlement is finalised before this comes into force.

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Legal procedure of handling land encroachment

If you want to try the legal way of handling the encroachment of land, you need to first hire a lawyer, who can prepare the documents stating that your property has been encroached upon. This is often called the ‘quiet title’ action.

However, if you do not want to sell the property, an ‘ejectment action’ can be taken, to evict the encroacher from your property. The encroacher is then tried for adverse possession or the court could grant him limited use of the property, often called ‘prescriptive easement’.

Property owners should know that trespass is of three kinds:

1. Of person (when the rightful owner of the property is restricted from doing what he could previously do)
2. Of chattel (when a person disturbs the rightful owner of the property, by using the movable property of the owner)
3. Of property or land.

The court may decide to pass an order of injunction, to either stop or restrain the encroacher. You can also appeal to the court, seeking compensation for the encroachment. This is usually calculated on the present value of the land and by estimating the proportion of loss caused.

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