[ecis2016.org] Amid rising instances of land grabbing and illegal occupation of properties, we look at what a landlord can do, to steer clear of trouble
Among the many cases that pertain to land in India, a large number are related to illegal property possession. Owing to the sheer worth of property, they often become subject to unlawful occupation by unscrupulous persons. Such entities also resort to forging of legal documents, to prove their wrongful ownership over a property. Between flats and plots, the latter are more vulnerable to unlawful possession, as it allows wider scope for illegal occupation.
You are reading: Tips to deal with illegal property possession
What is illegal property possession?
If a person, who is not the legal owner of a property, occupies it without the owner’s consent, it would amount to illegal possession of the property. As long as the occupant has the owner’s permission to use the premises, the arrangement would have a legal validity. That is why properties are offered on rents to tenants under lease and licence agreements, under which the landlord provides the tenant with limited rights to use his property for a specific time period. Inhabiting the premises after this timeframe, would amount to illegal possession of property by the tenant.
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What is adverse possession?
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If the tenant continues to occupy the property for a period exceeding 12 years, even the law will enable him to continue with the possession of the property. This is known as adverse possession in legal parlance. In case an owner does not stake his claim over his property for 12 years, a squatter can acquire legal rights over the property. Provisions on adverse possession are made under the Limitation Act, 1963.
How to deal with illegal possession?
Property owners have to deal, not only with outside entities but also keep an eye on their tenants, to ensure that their property does not fall prey to any fraudulent activity. Here are some precautionary measures to avoid this:
Keep changing tenants
In view of the aforementioned legal limitation, it becomes important for a landlord to change their tenants from time to time. This is also why most landlords provide their homes for rent only for 11 months, and, subsequently, renew the rent agreement in case they are comfortable with prolonging the stay of their existing tenant.
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Get a boundary wall constructed
Construction of a boundary wall is the first thing one has to do, in case of plots and land parcels. This has to be done, irrespective of whether the owner lives close to the location or not. Ideally, a housing unit must also be constructed to minimise the scope of interference from land sharks. Those living far from the location must put somebody in charge, to regularly visit the property, to ensure it remains free from illegal activities. While it may not always be a viable option, hiring a caretaker would also be a good way to avoid illegal occupation. This is especially true, in case of non-resident Indian (NRI) plot owners.
Keep an eye on your rented property
Even if you have found a fairly sensible tenant who has been regular with monthly rent payments and the upkeep of the dwelling, there is no reason to get complacent. Keep a close watch on your property and make your presence felt by making regular visits, without causing any disturbance to the tenant. In case the property is outside your city or country and making regular visits is not an option, hire someone or make someone in-charge, to perform your duties. You can never be too careful with property.
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Legal action against illegal possession of property
Those who have been at the receiving end of an illegal activity, can seek relief under various provisions of the Indian law.
Firstly, you should file a written complaint with the city’s superintendent of police (SP), where the property is located. In case the SP fails to acknowledge the complaint, a personal complaint in the court concerned can be filed.
You could also file a police complaint about the same. Keep a copy of the FIR safe for future references. The authorities will be obliged to take action under Section 145 of the Code of Criminal Procedure (CRPC).
You could seek relief under Sections 5 and 6 of the Specific Relief Act, under which a person dispossessed of his property may recover his right, by proving previous possession and subsequent illegal dispossession.
Who can claim adverse possession?
A person who is not the original owner, can claim adverse possession of a property, if he has been in possession of the property for a minimum of 12 years, during which the owner takes no legal effort to evict him.
What is possession in property?
Possession refers to the act of gaining or exercising physical control or custody of the property.
What is the transfer of possession?
A transfer of possession refers to a change or lapse in the possession of an asset.
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