Parents Can Evict Abusive Children from Home: Delhi High Court (Judgement)

Parents Can Evict Abusive Children from Home Delhi High Court Judgement

We have had a rich culture in India since ancient times where parents are looked after by their children when they grow old. Our moral values teach us that parents need our love, care, respect and protection in their old age not only because they are our parents who looked after us in our tender age, but because they need us the most at that age.

With the growing complexities of working culture and modern social setup where joint families are giving way to nuclear families, the need was felt for State to interfere and make provisions for providing physical and financial support to the elderly by the children. Thus the Maintenance and Welfare of Parents & Senior Citizens Act, 2007 was enacted. This Act aims to provide a speedy, inexpensive and simple procedure to claim maintenance. Under the 2007 Act, it has been left to the State Governments to frame rules for the protection of senior citizens.

In the Delhi High Court Judgement in a case titled Sunny Paul vs State of NCT of Delhi, it has been made clear that under the scheme of the 2007 Act, the main objective is to provide social justice to the elderly.

A.    EVICTION CAN BE CLAIMED from abusive children

  • With or without claiming maintenance
  • From any property – ancestral, self-acquired or rented accommodation. Property can be tangible/intangible, moveable or immovable. The property includes any right or interest in the immovable property and not just ownership.
  • Even if children are not in line to inherit the property

B.    MAINTENANCE CAN BE CLAIMED

  • It is now obligatory for the children/grandchildren to provide maintenance in the form of monthly allowance to the parents if they are unable to maintain themselves out of their own earnings.

C.    OBLIGATORY TO PROVIDE BASIC AMENITIES

  • U/ s 23 of the Act, transfer of property from senior citizen will be void if the transfer was on the condition that the transferee shall maintain the transferor and provide for basic amenities and physical needs, but he fails to do so. Transfer can be actual transfer, stay or possession. The transferee can be legal heirs or children.

D.    OTHER OBSERVATIONS

  • Everyone including the senior citizens has the right to live peacefully
  • The primary objective of the Act is to protect the life and property of the Senior Citizens
  • The Court also emphasised that the Act is social legislation and needs a liberal interpretation to respond to the urgent social needs of a welfare State. The Legislation intends to provide an effective remedy to the parents to save them from being traumatised.

E.    POWER OF MAINTENANCE TRIBUNAL

  • The Court upheld the power of the Maintenance Tribunal to order the eviction of abusive children under the Act and to issue directions to give effect to the same.
  • Earlier also in another case of Rajeev Bahl, Delhi High Court has stated that even if the property is HUF and children are coparceners, they can be evicted if they are harassing/ill-treating the parents.

The children cannot continue to misbehave with elderly parents and enjoy their property also. The moral obligation to maintain the parents has now come under the purview of the State, and the same is being enforced in the true spirit and light by various Courts. If the children are not fulfilling their obligation, they can be forced to do the same, and if they are maltreating their parents, they can be evicted from the property.

Rent Control Act India

Rent Control Act India

The Rent Control Act was passed by the Indian Government in 1948. This Act was passed so as to regulate the various norms of tenancy and land ownership and to curb the exploitation of either the landlord or the tenant due to rent or occupancy. The following are the various provisions of the act in favour of the landlord and the tenant –

Rights of Landlord Under the Act

Evicting a Tenant – Under the Rent Control Act, the landlord has the right to evict the tenant. The states have individual byelaws. In Punjab and Haryana, a landlord can evict the tenant on the basis of a personal, bonafide requirement, whereas the same does not happen in the Karnataka byelaws. But playing by ordinary rationale, courts allow for the eviction of the tenants on the landlord’s request, keeping into consideration facts and circumstances. The Draft Model Tenancy Act, 2015 shall make matters easier for the landlords.

Temporary Recovery of Possession – In order to make all the necessary repairs, alterations and changes in the property, a landlord has a right to recover temporary possession of the same.

Rent Changes – The Draft Model Tenancy Act is an instrumental legislation. Rent changes are something that usually occurs in accordance with the whims and fancies of the landlord. The rent cannot be unreasonably high or increased suddenly, however, the upper hand remains of the landlord and he can periodically increase the rent of the property.

Rights of Tenant Under the Act

Fair Rent – A landlord cannot unjustifiably increase the rent, however, he can approach the Rent Control Court in order to fix a rent. The rent has to be fair which is usually supposed to be 9% of the value of the building in totality including the cost of construction, the market value of land and amenities being provided.

The landlord also does not possess the right to disconnect essential services of electricity and water even due to rental reasons. They can approach the court, however, cannot deprive you of your basic supplies and amenities.

Eviction – In order to evict a tenant the landlord is required to approach the court and cannot unjustifiably evict the tenant. Byelaws play a major role in such a scenario. The Maharashtra byelaws are such that do not allow for the eviction of the tenant if the tenant is willing to acquiesce and agree to the changes in rent and is willing to pay the same. A notice is also to be given ninety days prior to filing a suit.

Steps to evict a tenant in India

Steps to evict a tenant in India

In India, laws governing tenancy tend to favour tenants and they differ from state to state. However, there are some grounds for eviction of a tenant which are common in most of the state laws.

Grounds for eviction

If the tenant is using the property for a purpose other than that mentioned in the rental agreement, or he has not paid the rent for a for a period more than 15 days or the period mentioned in the rental agreement.

If the tenant has further sublet the premises without the permission of the landlord. If any significant damage is caused to the property resulting in loss of utility or value of the property, or premises are being used for purposes which are considered to be illegal or immoral by law, causing nuisance in the neighbourhood whereby they have confirmed it in writing that the further living of tenant is objectionable to them.

Besides these reasons, there are some other bonafide reasons on the basis of which eviction can be claimed for example, when the landlord needs the premises for his self-occupation or when there is some major repairs to be performed which is not possible unless the premises are cleared and finally if the premises are to be demolished. If any of the above-mentioned reasons are applicable, the landowner can file a suit for eviction on the basis of the rules mentioned in the rental agreement.

Steps for Tenant Eviction

A Landowner must follow these steps in order to ensure a successful case of eviction.

Firstly, he must determine a logical and just reason for eviction.

Secondly, provide the tenant a registered acknowledgement due to the eviction notice. Once the tenant has acknowledged the acceptance, the landlord can keep it as a proof of his acknowledgement.

Thirdly, if now also the tenant doesn’t move out, the acknowledgement letter and the rent agreement can be used to file a suit in an appropriate Civil Court of jurisdiction. It is of immense importance that the landlord should not take recourse to any illegal measure like cutting essential utilities, forcing out the tenant, changing the locks and entering the premises without permission, because it might work against the landlord; considering the fact that in India laws are tougher on the landlord.

If the Court allows the petition/appeal of the landlord and grants some time to the tenant to vacate the premises and the tenant still not vacates, then the tenant shall be evicted by the Police force.[1]

[1] Ram Prakash Sharma v. Babulal Irla and Ors, (2011) 6 SCC 449.

Top Lawyers’ legal advice on grounds of property eviction

grounds of property eviction

It is not Uncommon for people in urban cities to live as a tenant due to exorbitant prices of Property. People often recourse to let-out their property on tenancy in order to get an easy and reliable source of income.

This easy income turns into a problem when tenant refuses to vacate the property. Earlier getting rid of a squatting tenant was a headache but now with evolution of laws and draft Modern Tenancy Act 2015, life is expected to get a lot easier for Landlords.

Tenancy Agreement

Registration of rental Agreement is mandatory by paying requisite Stamp Duty.

A tenancy Agreement is usually of two types:

LEAVE AND LICENSE AGREEMENT– The agreement by which Property is leases out for a period of 11 months. Eviction under it is purely regulated by Agreement between the parties and not the provisions of Rent Control Act 1948 as this act requires agreement to be minimum for 12 months in order to applicability of Premises.

LEASE AGREEMENTS – Such agreements grant more right to tenants and gives legal Possession of Property to Tenants. A properly drafted Lease Agreements may mitigate the risks for Landowners.

Grounds for property Eviction in India

Though property eviction is largely governed by State Laws, but certain common grounds for eviction of tenants from the property are-

Non Payment of Rent –The most obvious ground to get your Premises evicted is due to Non Payment of Rent. Willfully Abstaining from Non-Payment of Rent for period of more than 15 days when payment was due.

Sub-Letting of Premises– If tenant allows someone else to enter into premises and occupy it or himself sub-lets your property without your written consent, The Tenant makes himself

Usage other than as per Agreement– If tenant uses premises for purposes other than those agreed upon by landowner or as provided in agreement amounts to violation of agreement and tenant can be evicted out of premises.

Causing loss to Valuation of Property– Any act committed by a Tenant that cause loss to Property or diminishes its value become a ground of Eviction;

Use of Premises for Illegal or Immoral Purposes-If Tenant uses Premises for any Act that is either Illegal or Immoral in the eyes of Law;

Objectionable Behavior of Tenant– If according to Neighbors Tenant habitually commits Nuisance in the Neighborhood and the same has been obtained in writing From Neighbors.

Occupying another premiseIf Tenant, for a period exceeding Four months, has been living in a different state or region, he can be evicted from the premise in question.

Tenant Denies the Title of Landlord– If Tenant disowns Landlord or ascertains his right of Ownership, He can be evicted.

Bonafide Requirement of landlord– If landlord requires premises for the purpose of residence or for purpose of doing business or that premises needs to be demolished, landlord has a right to evict tenant.

The top lawyers’ legal advice is let out is Leave and License Agreement and to renew the said agreement time to time. Though Legislation for New Tenancy Laws is underway, yet giving your property without a Time barred lease specifically if you are living in foreign countries is something to be avoided for.

 

How to Evict the Tenant

How to Evict the Tenant

Firstly, an eviction notice is the first legal action for a landlord for removing his/her tenant. In case tenant fails to comply according to the notice, a landlord may file a suit for eviction of the tenant in the court of law. In India, there are limited number of reasons for which a tenant can be evicted by the landlord. These reasons may be different according to the state of living in. However, there is no harm in serving an eviction notice against the tenant. Eviction notice includes a deadline to pay rent or move out; it includes the amount owed.

The landlord should have valid reasons to evict the tenant such as non-payment, violating lease agreement, making noise or health ordinances etc. landlord have to give proof of any claim against the tenant. Tenant is “innocent until proven guilty”.

The eviction notice should be to the point, and fair reason should be given for eviction i.e. inform the tenant how he or she has violated the terms and conditions of the lease. A landlord should give prior 15 days’ notice for the eviction of property.

Eviction Notice generally includes the following:

  • The offence (reason for which owner is giving eviction notice)
  • A time period to remedy the offence
  • The date on which notice was served
  • Signature of the landlord

In case if the rent has not been paid for months, without the court order landlord cannot:

  • Physically remove the tenant
  • Cannot remove the tenant’s property
  • Lock the tenant out
  • Change the locks
  • Shut off the utilities (such as light, water etc.)

Reasons for eviction of the tenant:

  1. Failure to pay rent: This is the most common and strongest reason for eviction of tenant. Even if the rent is delayed by more than 15 days, it’s enough to evict.
  2. Sub-letting: In this case, if the tenant is letting out the property to another, hosting a friend or family member for an extended period then the landlord can serve the eviction notice against him.
  3. Commercial use: If the tenant decides to run a business on the property, even landlord could be in trouble. In this case, the landlord could immediately choose to evict him, or even the property is used by tenant other than the purpose mentioned in the contract then also landlord can evict him.
  4. Property Damage: it is an apparent reason which is usually mentioned in agreement that any harm done to the property will be recovered from the tenant.
  5. Society Problems: In this case, if the behaviour of the tenant is not satisfactory according to the society, landlord may evict the tenant.