A lot of NRIs face issues of possession over their property. Illegal possession and Adverse possession – both are major issues that NRIs face due to their prolonged absence from their root country. It is important for people to understand the terms and also ways of safeguarding themselves from these problems.
Adverse possession implies a situation under which an individual who is in possession of property owned by somebody else can become the owner.
This is based on certain requirements that have been met for a given period. The period is defined as per the law of the area.
The time could vary from state to state, but it is seven years or more.
In many cases, this depends on whether the occupation was a result of trespassing without any legal right or if it was done by what is known as “a good faith mistake”; meaning that the occupants were convinced that they were justified in their occupation.
Read: How to conduct due diligence before you buy land in India
This justification could be something like an incorrect deed, known as colour of title.
Specifically, these are the aspects that one needs to keep in mind while renting out one’s property or giving it to a caretaker. Here’s how we can understand it.
Possession
Possession is the state of having or owing something for a particular time. It consists of two elements:
- Physical control or power over the object possessed
- Intention or will to exercise that power
Adverse Possession
It is when the actual owner of a property loses her/his ownership rights because of inaction on his/her part to remove the trespasser within a statutory period from the property. After the lapse of the statutory term of limitation for eviction, the real owner is barred from starting any legal procedure to repossess his/her estate, and the trespasser procures title to that property.
The sanctioned period of limitation for possession of assets or any interest as per Limitation Act, 1963, is 12 years for private property and 30 years for Government/public/state property from the date since the trespasser adversely possesses the ownership of the actual owner. The real owner has to stake the claim on his/her property within the prescribed time limit.
In a judgement in 2013 against the Bangalore Development Authority, the Supreme Court stated that the time period of the illegal occupation would be counted from the date of purchase of the property and not from the date of the ‘Mahazar’ (the petition).
Requirements for claiming the title by adverse possession
The requirements for obtaining title to the property are:-
- Continuity: The occupation of the property by the applicant must be unbroken, continuous, and uninterrupted for the entire sanctioned period of limitation.
- Hostile: This means that the claimant has knowingly occupied the property in opposition to the actual owner’s rights, for the statutory time (12 or 30 years), and with the purpose of acquiring the title.
- Actual: The person staying in the home with the intention of keeping it should show that he is exercising authority over the property by performing physical acts such as construction, planting and harvesting crops, repairs, and so on.
- Exclusive: The claimant must have had sole occupancy of the property for the statutory period of limitation.
Two people if share occupancy of the property may claim the title as joint tenants. - Open: The person claiming the title must possess the land or house openly, and not in secrecy, as a real owner would.
- Occupying another’s property quietly does not give the trespassers any legal rights.
- The owner or the public must have actual knowledge of the adverse use.
Details that one has to present before the court to claim adverse possession
The applicant to claim the property title has to share necessary facts and evidence. The details that are required to share with the court are as follows:
- the date he took the possession
- the nature and span of the occupation
- whether the claim of possession was known to the actual owner or public
- the possession was undisturbed and open
Debates
Over time, it has also been suggested that the notion of adverse possession needs to be reviewed. Some legal thinkers point out that there might be less certainty in the law of possession. In many cases the courts have a dilemma as far as the meaning of the various expressions are concerned – actual, continuous, open, hostile and exclusive possession.
Precaution needed
Irrespective of the debatable aspects put forth at various points of time, Adverse Possession is an issue that needs to be well considered and kept in mind by all landlords who decide to give their property on rent or to caretakers. The law provides protection to landlords. Owners need to be careful about defining the time period for which the occupant can stay, in order to safeguard their property rights. It is best to seek proper legal advice for the same.