Adverse Possession

Judgement on Adverse Possession

In a recent decision on 7th August, 2019, the Honourable Supreme court of India has passed a judgement wherein it has been held that adverse possession has roots in a principle that awards ownership of a land to a person who makes the best or highest use of land. It means that if a person who is in possession of the land for 12 or more years and maintains the property and improves the property has a better claim over it than the owner who neither visits the property nor cares for the property. By way of this judgement, any person who is taking care of the property for more than 12 years without any interference can claim a title/ownership over the property through the court. It is therefore advisable that any NRI who is having immovable property in India and that property has been entrusted to someone as a caretaker without any agreement or existing documents, NRI cannot claim ownership right over the property after the expiry of 12 years, if that person is enjoying uninterrupted interference over that property.

To ensure that the property of NRIs is not claimed by any caretaker who has been entrusted by them, NRI should keep in mind the following instructions:

  • Ensure that a lease and licence agreement is prepared with the person who is appointed as a caretaker.
  • Ensure that a proper rent agreement is prepared if the property has been given on rent and it should be updated from time to time.
  • Ensure that even if any relative/friend is entrusted to take care of property, there should be a proper written agreement.
  • Ensure that the property tax and maintenance charges are paid by NRIs directly at regular intervals.
  • Ensure that utility bills like electricity and water bills should be in the name of the owner of the property.

We hope that this article will be helpful for the NRIs to safeguard their property in India in view of the judgement of the Honourable Supreme court.

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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

Read More: Boundary Line Dispute

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

When Caretakers Try to become Property Owners

When caretakers try to become property owners

In India the culture of leaving behind property as the responsibility of caretakers is an ongoing culture, especially in the case of NRI’s due to their living outside of the country for long durations. However, property possession is nine tenths of the law and that is something that provides for great merit in rightful claim over property. The reliance of individuals over their caretakers/servants/agents for the benefit and upkeep of their properties is increasing as the days are going by.

The Supreme Court in 2012 gave a decision for matters where the servants/caretakers/tenants etc. have tried to usurp the property of individuals and have tried misusing the justice system. There have been instances where these caretakers and tenants etc. in the absence of the real owners of the property have tried to claim rights in the property and have also refused to vacate and give up control over the property (on ground of 12 years of uninterrupted possession/adverse possession).

Although these claims are unjustified, but they have been known to delay the process of providing justice. In cases of Maria Sequeria v Erasmo Sequiria as well as Ramrameshwari Devi v Nirmala Devi it was held that a caretaker/servant/agents possession is not in his own capacity but is in the capacity of the rightful owner of the property.

The real property owner has a right to file for an eviction for the same.

In a case, the Supreme Court even held that since such frivolous matters cause a lot of costs to the individual who is the rightful owner, that individual has the right to demand restitution but since in the pertinent case, the appellant was a watchman who wouldn’t have been able to bear those costs, the Supreme Court dismissed the case with a fine of Rs. 25,000.

The Supreme Court has upheld principles like – the title of a property does not get acquired by an individual just because that individual was allowed to stay cost free, caretakers servants etc. do not acquire possession of property regardless of how long the stay, court protection can only extend to a person who has a valid rent/lease/license agreement.

The Supreme Court should be commended for this strong and ground breaking decision since this judgment upholds the rights of the actual property owners and safeguards them from the land grabbers.


Forceful possession on the property

Right of possession of property:

It is the right in the property irrespective of whether person is a temporary holder or long-term holder. The person with the right of possession usually has also the right to occupy and use it.  The word Possession is much wider in legal parlance and includes possession whether actual or constructive and in fact or in law. However, intention, consciousness or will is an essential ingredient of possession. It has a great significance under Indian law, as it acts as a good evidence as to title in rem except against the true owner.

There are cases where possessor and property owner are one and the same. For instance, by way of prescription i.e. when the peaceful possession of property is enjoyed continuously for a long time. Conversely, in case of a Trustee of the trust property, tenant of rented land, limited owner (women before enactment of Section 14 of Hindu Succession Act), an agent holding the property on the behalf of his principal, etc., possessor and property owner are two different persons and owner has an upper hand as he also possesses the right to dispose of the property.

Forceful possession and its punishments:

Forceful possession is different from criminal possession which involves holding of prohibited articles such as illegal drugs, firearms or stolen property. Protection is provided to possession both under civil (Torts) and criminal law (Indian Penal Code, etc.) against use of force.

Force, which is synonymous to violence, compulsion, power, duress, can be interpreted widely when suffixed with possession so as to include the following:

  • Theft under Section 378 of IPC i.e. taking movable property dishonestly out of the possession of any person without that person’ consent. It is punishable with imprisonment of up to 3 years or/and fine (Section 379). Imprisonment may extend to 7 years in case it is committed by a clerk or servant (Section 381).
  • Extortion as defined under Section 383 i.e. dishonestly inducing a person to deliver some property, etc. by putting him in fear of injury to his person or some other person. It is punishable with maximum imprisonment for three years or/and fine (Section 384).
  • Robbery under section 390 or Dacoity under section 391.
  • Criminal trespass under Section 441 involves entry into or upon property in the possession of another without his consent or continues to stay there after his consent ceases to exist. According to Supreme Court in the case of Laxmi Ram Pawar v. Sitabai Balu Dhotre, a person trespasses upon land if he wrongfully sets foot on it, rides or drives over it or takes possession of it or expels the person in possession…. The Court may provide relief in the form of injunction and damages or the person could be imprisoned to the maximum of 3 months duration or/and fine upto Rs. 500 (Section 447).

Adverse Possession – Owners need to be careful

adverse possession

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 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

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.