Legal remedies for encroachment of property by neighbor

Property encroachment by the neighbor – the legal remedies

A person buys a property either for investment or for own use. In both cases, one wants to reap the benefits which flow to the owner of the property. At the same time, it is vital that the owner remains vigilant and protect the property from illegal/unauthorized intrusions. In case the land/property is left unattended, especially as in case of NRIs, the chances are high that the unlawful occupants will take advantage of the same and encroach upon the property. 

Property encroachment occurs when a person without any authority or consent: 

  • occupies the property or
  • constructs some structure over the property of another person (owner)

Recommended reading: Repatriation of funds from NRE/NRO Account

An addition made to one’s property which crosses the boundary and falls upon the property of another person in violation of his rights is property encroachment. For instance, a neighbour constructs a balcony /shed /garage which extends to the adjacent property.

Property encroachment can be intentional or unintentional. It is unintentional when boundaries are ambiguous. An action lies against the encroacher. 

There is a difference between trespass and encroachment. In trespass, it is the unauthorized interference of a person in the property. It is an unlawful entry into the property of another person. Construction of a structure etc. is not essential. On the other hand, property encroachment is not just an illegal entry but also changing the structure/status of the property.

Recommended reading: Reserve Bank of India Guidelines on NRIs Remittance

The rights and remedies available to the owner against encroacher are the same as in trespass. 

  • Trespass is both a civil and a criminal wrong. Under the Indian Penal Code, trespass with criminal intent is an offence. The law permits the owner to use force against the encroacher if justified by the circumstances. He can cause grievous hurt or kill the intruder. 
  • The owner has the right to protect his property by stopping the encroacher from invading his land. 
  • The owner can lodge FIR for criminal trespass.
  • The owner can file a suit for injunction. It is an order of the Court vide which the wrongdoer is asked to perform or restrained from performing a particular act. The directive can be temporary or permanent.  
  • The owner may also seek damages. It is an amount paid as compensation to the owner for loss suffered by him. Damages for mental harm are also permissible. 

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There are many factors which determine the relief to be granted. The court orders removal of encroachment if the injury caused to the owner is irreparable. Sometimes the encroachment is innocent. The hardship caused to the encroacher by removing the encroachment is much more than the loss to the owner. Then the Court may not order the removal of encroachment. 

The owner must possess title deeds and survey maps of the area. It will help to establish his claim against the encroacher.   

Prevention is better than cure. Therefore, it is advised to 

  • Regularly monitor the property
  • Be watchful towards the acts of the neighbours. 
  • Any settlement for allowing the use of one’s area by the neighbour should preferably be through a written agreement.

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Property Disputes among Siblings

Property Disputes among Siblings

Property disputes are common among siblings. The property becomes a bone of contention among family members irrespective of the financial status of the family. There is a desire to get the maximum share if there is a distribution of family property

Apart from greed, one other cause of dispute of property could be the lack of knowledge and clarity about the property inheritance laws.

In India, there is a strong culture of holding the property jointly within a family. But once the eldest member dies or there are differences in the joint family business, the problem of distribution of property arises. 

The main question is – are siblings entitled to the property as being the legal heir of the deceased or as per the tenor of his Will?

The dispute among siblings mostly relates to the share each will get and the settlement of debts and liabilities. The legal advice of an expert always helps in such matters.

Read: Share of a brother in deceased brother’s property

Intestate Succession:

When a person dies without a Will, his property is distributed as per inheritance laws.  In India, the inheritance of property is governed by:

  • Personal laws
  • Customary laws
  • Legislative laws

There is a lot of ambiguity about personal and customary laws.  

We have The Hindu Succession Act and the Indian Succession Act, but the same applies to a section of the population only. Even under the codified law, there is a difference in property distribution rules if the property is ancestral or self-acquired. 

Under the Hindu Succession Act, a person/owner is free to deal with his self-acquired property. The ancestral property cannot be distributed as per free will. The coparceners (a small unit within a family) have a birthright in it. 

Brothers and sisters are entitled to equal shares in the property of their mother or father under Hindu law. While considering inheritance, the term son and daughter under Hindu law includes adopted son and daughter but not stepchildren. Thus siblings who are stepbrother and sister are not entitled to share in the property of the father.

Read: Married Woman’s Share In Father’s Property

Property dispute and the Will

Will is a legal document wherein the testator expresses his desire for distribution of his wealth after his death.

Even if there is a Will, property dispute can arise among the siblings. The beneficiaries (siblings) are dissatisfied with the tenor of the Will. The distribution of property seems improper to them.

A Will can be challenged on aspects like improper execution, fraud, forgery, undue influence etc. The parties level allegations against each other and try to prove that the Will is invalid.

Read: Property rights of a son on mother’s self-earned property – Issues and the Law

Property dispute and partition

It is not easy to decide the share of each member in case of joint family property. It is better to have a family settlement deed (an agreement based on mutual understanding). A written agreement is preferable over verbal/oral agreement. Once the shares are decided, the property gets partitioned, and the siblings get their respective shares.

Property disputes are common among siblings but can be avoided with timely legal advice.

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Remedies for a landlord if the tenant refuses to leave after an eviction notice

Remedies-for-a-landlord-if-the-tenant-refuses-to-leave-after-an-eviction-notice

There has always been a huge amount of skepticism around the landlord-tenant equation in our country. Legally, the landlord-tenant relationship is governed by Rent laws which differ from State to State. 

In case of any problem, the law permits eviction of the tenant on specific grounds-illegal measures to evict the tenant should be avoided. 

In reality, it is challenging to deal with a tenant who refuses to leave even after being served an eviction notice.

The landlord may opt for having a conversation with the tenant. It helps to understand what is preventing him from leaving the premises. It is always better to have a word and work out a solution. 

Read more: Investment in Indian Property – As an NRI investor know your facts

Eviction Notice:

If dialogue does not help, a legal notice is sent. Sending an eviction notice is the first step to initiate the process of ejectment. It is a legal notice vide which the landlord informs the tenant the reasons for seeking his removal from the rented accommodation. 

A notice period of a reasonable number of days is given to vacate the premises.

The requirement of sending a notice to the tenant depends upon the applicable rent laws. A landlord must be conversant with the rule and regulations of the tenancy as prevalent in the area. 

Once the notice is served, the tenant may do what the landlord demands. 

Read more: The necessity of Legal Due Diligence in India

What if tenant refuses to go even after eviction notice?

Legal battles are often time consuming and expensive. However, sometimes there is no option left.

If the eviction notice is served, the tenant may refuse to leave. The landlord then files a suit in the court for ejectment of the tenant. It is advised to take help of professionals/law firms to draft and file the petition. A lawsuit is filed in the appropriate court within whose jurisdiction falls the rented property.

There are various grounds available to a landlord for evicting the tenant, like:

  • Violation of terms of the agreement by the tenant
  • Personal Necessity of the landlord – the property is needed for personal use
  • Non-payment of rent
  • Premises has become unsafe for human habitation and needs repair
  • Property is needed for renovation or alteration

The petition is filed after expiry of the said notice period, stating:

  • The terms of the rent agreement/lease deed between the tenant and the landlord
  • The violation made by the tenant – unauthorized use, subletting, non-payment of rent etc.
  • The period of non-payment of rent and the amount due

The landlord has to explain the violation of the lease deed. If there is no rent/lease deed, it becomes difficult for the landlord to make his point.

The copy of the eviction notice served upon the tenant is annexed with the petition.

It is pertinent to mention here that sometimes the landlord forgoes pending rent in case of eviction suits as he is more interested in getting back the possession of the property.

Read more: Selling a Property through a General Power of Attorney – Is it even valid?

Hearing in court:

The court fixes a date for the hearing. The parties are heard, and the order is pronounced. 

If the landlord wins the arguments, the court orders the tenant to hand over the possession of the property to him. The court grants time to the tenant to vacate the property.

If the tenant still fails to do so, the judicial order gets executed by filing an execution petition. The court appoints a Court Officer for removing the tenant. The Police may also intervene in case of recalcitrant tenants. 

Read more: How to save title of your property from illegal occupants?

What To Do If Your Property Possession Has Been Delayed?

What To Do If Your Property Possession Has Been Delayed

When the builder delays the possession, it results in harassment to the buyer, and the excitement of owning a new house is also lost. Besides, there are financial losses also.

Nowadays, the Government is coming up with pro buyer rules and regulations for tackling the problem of delay in possession. Even courts are taking stringent action against the builders who default.  

Also Read: Does Consumer Has The Right To Damages And Recovery If Possession Is Delayed?

Remedies available to the buyer are as follows:

Filling a complaint – A complaint can be filed by the buyer before

  • civil court – A civil court may order for a refund of the amount already paid, compensation or completion of the project.
  • consumer forum – awards compensation
  • criminal complaint – a criminal case can be filed in a court for cheating or  breach of trust

Authority set up under RERA – Real Estate (Development and Regulation Act, 2016). It is a new law under which the Government sets up a body known as Real Estate Regulatory Authority.  A complaint can be filed before it. Buyer may hire a lawyer or himself fight his case before this Authority. A complaint is filed if the builder is not compensating the buyer. RERA is applicable only for larger projects where the area of land to be developed is more than 500 square meters.

Also Read: Delay in Possession of Property by the Developers

Compensation: A buyer can seek compensation from the builder –

  • Compensation as per the compensation clause in the agreement signed by both the parties – by sending a legal notice or filing a case in civil court
  • Compensation – by filing a complaint in Consumer Forum 
  • Compensation under RERA – Buyer is given the right to withdraw from the project if the builder has not handed over the possession in time. Buyer can seek compensation for the entire payment made if he withdraws from the project. Otherwise, he has a right to be compensated for period of delay.

Arbitration:

If the agreement for sale of the house contains an arbitration clause, the dispute is resolved through arbitration. The arbitrator may order compensation. The buyer will have to move the civil court for implementation of the award passed by arbitrator. 

The buyer can choose Consumer Forum even if there is an Arbitration clause.

Other remedies:

The agreement itself may provide for the penalty in default. The buyer can get the clause enforced.

What should be the duration of delay in possession?

Compensation can be granted even when there is a delay of one day.

Choice of remedy: The buyer can choose:

  • At the first instance, send a legal notice. If the builder does not respond, an appropriate remedy can be availed.
  • If a Regulatory Authority is set up in a state by the Government under RERA, a buyer cannot seek remedy in a civil court in that area.
  • If no Regulatory Authority under RERA has been set up by the Government for a State, the buyer can approach civil court.
  • A buyer can also approach consumer forum for redressal of his grievance as he is a consumer and services provided by buyer are deficient.
  • A criminal complaint can be filed depending upon the facts of the case. In a criminal complaint, the builder is punished if found guilty, but the grant of compensation is the discretion of the court.

Also Read: Issues with property developers

Generally, the law does not permit availing more than one remedy at the same time. A buyer can approach consumer forum and RERA both, but he has to make a choice. One can withdraw his case from Consumer Forum and file the same before RERA as it a special law enacted for the protection of home buyers.

Consumer Forum and RERA can award compensation and impose penalty also. RERA can impose more stringent penalty.

How to save title of your property from illegal occupants?

illegal occupants - adverse possession

An owner of a property is at will to use or not to use his property. However, if there is an intrusion and he does not take any timely action against the intruder, he loses the property. It sounds strange, but this is the law.

Adverse Possession is a legal doctrine that legalises occupation of a trespasser over a property. The claimant gets a right of ownership in the property if the real owner of the said property is sleeping over his right and does not take any action against the intruder (the claimant) who has enjoyed the possession of the said property for a sufficient period.

Read More: Owners need to be careful

In Indian Law, the concept of adverse possession is explained under The Limitation Act, 1963. If the real owner does not claim his right against the intruder within a prescribed time, he loses his right, and the possessor (intruder) gets the ownership right.

Elements of adverse possession: There are certain elements which are necessary to form adverse possession. These are:

1.    Possession must be hostile to the owner:

  • The claimant must possess the property with an intention to acquire the right through adverse possession. It is possession with a declaration of ownership against the original owner.
  • A trespasser can occupy the land even by mistake or inadvertently
  • No adverse possession if the trespasser had the authority to use the property, e.g. a tenant

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The possession should not have been obtained by

  • Force
  • Unauthorised means

2.    Period of possession – A claim of ownership through adverse possession can succeed in a private property if the trespasser has possessed the property continuously for 12 years. The period begins from the date the claimant (trespasser) is in adverse possession. For Government properties, the time is 30 years. This period varies in different jurisdictions. The owner has to bring an action within this limitation period.

3.    Possession must be actual, uninterrupted, continuous and exclusive. The claimant must be physically present and using the property. The claimant must be using the property exclusively.

4.    The public at large must be aware of the possession of the claimant. It is not the liability of the claimant to inform the actual owner, but the possession should be open to the extent that the real owner has the means to know that someone is occupying his property.

Read More: When Caretakers Try to become Property Owners

Defenses to Adverse Possession

The real owner can prove the absence of any of the above stated essential elements to defeat the claim of the intruder:

  • The claimant has not possessed the property for requisite duration
  • Use of the property was not uninterrupted and not continuous
  • The property was not being used exclusively by the claimant. The owner was also using the said property
  • The owner has permitted the claimant to use the property. In such a case, possession is not hostile
  • Adverse possession does not help to get the title if the real owner is minor, of unsound mind or in armed forces.
  • Government-owned land is sometimes exempted from adverse possession.

Need to relook: Many legal thinkers have criticised the doctrine of adverse possession as it helps the illegal occupants to get the title because of the inaction of the real owner. There is unjust enrichment. There is a need to relook into this law. Recent court rulings reveal that courts are now making it more robust for the illegal occupants to claim title through adverse possession.

Read: How to file a consumer complaint in the Consumer Forum in India?

Precautions that real owners can take to protect their property: Being vigilant is the key          

  • Regular monitoring of the property – Especially in case of NRIs as they are more prone to losing their property to intruders.
  • Building a fence or wall around the property
  • Placing the signboards for trespassers