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?

HUF property and its partition by Coparceners

HUF-property

HUF or Hindu Undivided Family, consists of several members related to each other through a common ancestor. Coparceners are a small unit of four generations of lineal descendants of a common ancestor within this family. The property held jointly by the members of the family is called HUF property, and only the coparceners can seek partition of the same.

What does HUF actually infer? 

It is a family comprising of lineal descendants of a common ancestor and their wives and unmarried daughters. Its creation is automatic when the person gets married. A child is integrated into it at the time of birth. It cannot be formed by a single person but requires at least two. 

Any number of persons can be members of HUF. They may have a remote relationship with the common ancestor and are connected through:

  • Marriage
  • Birth 
  • Adoption

Coparcener

A coparcener is a member who acquires right in the HUF property by birth. The coparcenary is formed of four male lineal descendants and also consists of collaterals, i.e. uncles, cousins and so on, within this four generation. Wives are not coparceners. 

After the amendment in the Hindu Succession Act, 1956, in the year 2005, daughters are also coparceners. 

The concept of HUF property

For existence of HUF, it is not necessary that there should be a joint estate. It can exist without any property. 

There is a legal presumption that the property of the Hindu Undivided Family is joint. Its income belongs to all the members. If a member claims to hold separate property, the same has to be proved.

The Income Tax Act recognizes HUF as a separate entity. A PAN number separate from its members is allotted to it. The income is taxed separately from its members. 

HUF can acquire property in any of the following manner: 

  • Gift
  • Will
  • Ancestral Property 
  • Property purchased by paying sale consideration out of HUF income
  • Property added in common pool

Each member has a right to maintenance from the joint property. 

Partition gets affected:

  • By agreement to divide the property
  • By filing suit
  • By giving notice: The coparceners can give notice of his intention to severe his share from the HUF property.
  • Partition by conduct: The conduct like severance of business, severance of residence (house), severance of income and expenditure, is a clear intention of a coparcener to sever ties with the HUF.
  • By Karta: The Karta of the family can seek partition and divide the property
  • Automatic severance: When a coparcener converts to another religion, there is an automatic severance of that person from the HUF. But other remaining members continue to form HUF.

Total and Partial Partition

In total partition, the joint family status comes to an end, and the members get separated with their share. 

In partial partition, only a few members get separated, and others remain joint. Or there is a separation of some properties, and other remains intact.

Partition under the Income-tax Act is recognized only if it is full both as to the property and the persons.

Share of each coparcener fluctuates with the addition and deletion of members by birth and death.  After partition, the coparcener becomes the absolute owner of his share and is free to dispose of the same. In case he dies intestate, the share passes to the legal heirs as per the Hindu Succession Act.

Common frauds in the transfer of properties

Common frauds

Perception is – Where there is property, there is a fraud!  Possibly because, there is a lack of transparency in the processes, and the documentation is not simple. Also, in most cases, there is a casual approach to property management issues.

Here’s a glimpse of what the transfer of property entails, the potential frauds therein, and the solutions

Transfer of Property:

  • The transfer of property is an act by which the owner of the property (transferor) transfers the ownership rights in the property to another person (transferee)
  • Property can be transferred in several ways like Gift, Will (Inheritance), Sale, Partition or Relinquishment of share in case of co-owners.  
  • Property is transferred along with the liabilities attached to it. But it should be with the consent and knowledge of the transferee. E.g. in case of Gift, the donee must accept the gifted property with the liabilities if there are any.
  • There can be some agreement or adjustment between the transferor and the transferee about liabilities. It is generally there in case of inheritance, partition or relinquishment.  

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

Fraudulent transfer and frauds:

  • When the transferor transfers the property by concealing the facts of liabilities/defect in property from the transferee intentionally, it is called fraudulent transfer. 

Some of the common frauds committed while transferring the property are:

  1. Fake title: The title deed is fraudulent. The person presenting himself as the owner is not the owner. Property papers are false and forged. The title deed can be any document which depicts the title of the owner in the property. 
  2. Multiple Registrations: The property transferred (sold) has got multiple registrations. The property is sold by the owner to many buyers fraudulently. The owner grabbed the money from all the different buyers and absconded. All the different buyers have to fight legal battle to establish their ownership.
  3.  Pre-mortgaged property: It happens a lot of time that the seller/transferor has already mortgaged the property sold/ transferred with a bank to avail loan against it. Thus the property is not free from encumbrances. The fact is not revealed to the buyer, and the buyer loses his hard-earned money if he purchases the property without exercising due diligence.
  4. Encroached property: The property transferred has been constructed on an encroached land. The actual land belonged to Government or another party, but the person who has sold the property to the buyer never disclosed the same. The transferee has to fight legal battles later.
  5. Permissions not obtained: Properties like those in a Registered Society or Housing Board flats require special approval from the Concerned Authorities before transfer. In some cases, the transfer is not even permissible. But the people manage to defraud the transferee and transfer such properties without obtaining the necessary permission. 
  6. Mismatch of location and area: The fraudsters transfer the property by mentioning the wrong location. The area (measurement) mentioned is also not correct. 
  7. The person not authorized to transfer: (fake GPA or misuse of GPA): A person may transfer the property which he is not authorized to transfer. The power of attorney holder misuses GPA and transfers the property in violation of the terms of the same. Hence he cheats both the actual owner and the transferee. Sometimes the GPA is a fake document.
  8. Encumbrances over the property: There are various kinds of encumbrances affecting the value of the property. These can be in the form of mortgage, lien, litigation (disputed property), unpaid charges (utility charges). The transferor of the property can cheat the transferee by not disclosing the same.

Also Read: The married daughters’ right in mother’s self-acquired property

The way out – Key to avoid the frauds:

  • Be alert
  • Take timely precautions
  • Take proper legal advice
  • Scrutinize the documents

Certain precautions will enable the transferee to avoid suspicious transactions:

  • Demand the original property papers for verification.
  • It is essential to check for the payment of dues. Verify the same from the respective Authorities, e.g. office of Municipal Corporation. It is vital to check if the transferor has paid the dues.
  • Visit the offices of local authorities to check out for the encumbrances on the property. The transferor must clear any loan availed by mortgaging the property.
  • If the Power of Attorney holder transfers the property, it is significant to verify its terms to ensure that there is a right to transfer the property.

John A. Das

NRI Legal Services Testimonial

I am writing to you for the services provided in searching a land which was owned by my family at least 5-6 decades ago. Due to unavoidable circumstances, I had to leave for UK. Therefore, left all the property affairs in the midst and completely lost hope that if I ever will recover my ancestral estate. The company Nrilegalservices came to me as a ray of hope. With information as basic as my father’s name and the area where the property was situated, they did a thorough investigation with the revenue authorities and physically inspected the land. They helped to retrieve the record for the land belonging to Late B.M Das (my grandfather).

I am thankful to them for all the assistance and great services provide. I highly recommend them to any person who is looking out to search their lands and properties in India.

John A. Das, UK

Gurmail Thind

NRI Legal Services Testimonial

To Whom It may concern

I am glad to have found NRI Legal Services in England so we could meet them and discuss our issues in India. We were battling with our land dispute in India and were in the midst of chaos. NRI Legal Services came as a much-needed help, an organisation who guided us in the most appropriate manner and strategized for us. We have finally resolved our dispute with all the right guidance by this organisation.

As a client, I am very satisfied with their work, service, communication and professionalism. We are happy with the services provided and highly recommend their services to any person looking at resolving their property issues in India.

Gurmail Thind, UK