How to save title of your property from 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.

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

HOW TO DEAL WITH THE ISSUES OF LAND AND PROPERTY ENCROACHMENT IN INDIA

Land and property encroachment India

Land and abandoned houses in India are most vulnerable to encroachment. A land in India is usually purchased for investment and then is left unattended which is why it becomes an easier target. Houses too, particularly of older people without primary support or of NRIs are prone to become soft targets. And later, the legal way of eviction is also cumbersome and time-consuming.

Land and property encroachment is the unlawful entering upon the property, other possessions, or the rights of another (gradually and without permission).

Trespass to land occurs when a person undeviatingly intrudes on another’s property without consent or settles upon the land.

How to protect your land from trespassing and encroachment?

  • The primary rule to follow would be to have all the essential documents regarding the property in place to prove the legal rights of the owner. Documents such as the title deeds, revenue records, mutation, the copy of the Will (if any) which states that the property has come by way of a Will, electricity bills, water bills and telephone bills, original purchase agreement/sale deed, etc. help in establishing the right of the owner
  • If the title deed is missing from your custody either because it is untraceable or lost, then one must immediately lodge a formal police complaint to the effect.
  • The next-best thing is to issue a notice in at least two major local newspapers about the ownership rights of that property. Later one should obtain the certified copies of all such records from the concerned registering authority or revenue offices.
  • Another important thing is to pay all outgoings and liabilities like municipality/panchayat/property tax to the authorities on time.
  • One must also be in touch with the neighbors so that they may be able to report if they notice any activity. One should also keep a check on the property, via friends, and relatives, so that the trespassers and encroachers know that the property is not a soft target

Apart from this, there is a certain list of tips concerning land and property encroachment in India

  • If one has to give a Power of Attorney (PoA) to a relative or friend, then it must be well-defined.
  • One must fence and put up a board on the property.
  • The assistance of a professional service provider who can help with monitoring the property is also helpful. They make occasional visits, put up boards and fence the property on behalf of the owner.
  • A small concrete construction on the property that can be rented out to a tenant under proper documentation is also a good option to keep encroachers and trespassers at bay.
  • One must have good tenancy agreements to protect one’s interest. Hiring service of a lawyer is well worth it.
  • Get your renter registered with the local police station, in places where such tenant registration is either mandatory or is voluntarily accepted.
  • Promptly renew lease agreements on current terms as may be on expiry of contract or request vacation.
  • Keep a check if the rental payments are coming through into the bank monthly. Checks get bounced, and if one does not notice it for a very long time that would make the tenant more secure and later removal of such residents will not be easy.
  • Do not keep residents at face value, have a proper inquiry before renting the house.
  • Senior Citizens who have rented out their property or part of their property, need to be extra careful to ensure that they do not get taken in for a ride.

Although, things have improved since the implementation of computerization of land records and registration in various states there still lies a lot to be done, and it is better for individuals to be careful to avoid land and property encroachment in India.

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.

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.

Are you facing an issue with the possession of property?

possession of property

There’s no dearth of things that the individual uses to fortify his identity, status, and sense of pride in society-and sometimes, in his own eyes too. Property is undoubtedly amongst one of the major aspects that lend to this identity – more so for NRIs for whom this is a vital connection to their homeland, their roots. Naturally, then, any action that threatens his security is an issue of concern.

While the much talked about ‘Benami Property‘ might not always be applicable in the case of NRIs, there could be four other major situations in the case of an NRI being the holder of the property. The first two are fairly easy to understand. These would involve situations where either he is the owner/resident, of the property or, he has rented out what he owns. Tenant occupancy is fairly well looked after under the Indian Constitution, and so long as one has proper contractual agreements with the tenant, one stays secure.

It is the other two situations which become matters of grave concern if due caution is not used. These are in the context of Illegal Occupation Property. First, the property could be trespassed upon by some people in force. However, it is a rare chance that the trespassers would be having actual papers regarding the property. The greater threat comes in two processes involved – one, there is a tenant who refuses to leave the property or house and has the benefit of improper documentation or none at all from the owner’s side.

Two, when an appointed caretaker seeks to illegally occupy the specific property. NRIs face this dilemma often after they’ve appointed some trusted’ individual to monitor their land as they can’t be there all the time to look after their property. If they have entered into a Leave or License’ agreement with the caretaker, there would always be hope since the owner would have the right to ask the caretaker to step down as and when he deems fit.

But as it happens in most cases, in situations where the caretaker is appointed on sheer trust without any agreement, the proprietor stands to be in a vulnerable situation. India is a land where culturally and temperamentally actual possession is provided more weight than anything else it matters who is invariably occupying a piece of property. Hence the illegal occupant is in a spot where he can be considered a threat to the proprietor.

Illegal occupation of property is among the list of biggest threats for NRIs and will continue to loom large unless genuine effort is put on increasing awareness of the precautions required. In the case of any dispute about illegal occupancy, there are various remedies available under Civil Rights-however prevention does assist.