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

Land Kabza- What to do?

Land Kabza- What to do

Land Kabza means someone else has occupied the land of an actual owner. The problem is common with NRIs as they cannot visit the place frequently and the property is left unattended for a long time. Grabbing such properties is easy.

Legal Advice and good property lawyer always help: It is sensible to hire a property advocate for proper legal advice to prevent Land Kabza and to take timely legal action in case of encroachment.

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

Here are the answers to certain queries that are often raised in this matter.

What is meant by land kabza?   

Land kabza means illegally occupying another person’s land by a person who is not legally entitled to the same. The Illegal occupation can be:

  • By Force – land mafias generally occupy the land abandoned by owners
  • By forging the documents of title – people occupy the land and also procure forged title deed in connivance with the local authorities
  • Tenants who refuse to leave

What precautions are required to prevent Land Kabza?

A.    Documentation

  • Property Documents: All property papers must be in order. A person who has invested and purchased any property or has acquired any property legally must ensure that the title deed describing him as the owner of the property is prepared and available with him.
  • Payment of charges: The owner must have paid all the electricity, water bills and other government dues for the property and must preserve the receipts as these all assist in defending the ownership.
  • Registration and mutation:  The owner must get the documents registered in conformity with the State Laws. Mutation of the property is also essential. Mutation means to inform the revenue authorities about the ownership of a property. Mutation is not one time process but has to be done regularly.

Rent Agreement: In case the property is on rent, a valid rent agreement with the tenant must be in place.

Also Read: Property rights of a wife after husband’s death

B.    General Precautions:

  • Regular inspection of the property: The owner must visit the land frequently. In case of NRIs, it is not possible to physically inspect the site regularly; therefore, they can manage the same through a family member or a friend. A caretaker can be appointed to do important tasks.
  • Fencing: In case of vacant plot or land, fencing should be there. Constructing a wall indicates that someone owns the property.
  • A signboard warning the trespasser:The signboard helps to know that someone owns the land and trespassers will be prosecuted.

What are the remedies?

Also Read: Division of property between brother and sister after father’s death

If the property is found to be the encroached, immediate action is required. First of all, the owner should ensure that he has got all the necessary documents proving his title/ownership with him and then:

  • Inform the local authorities –revenue department etc.
  • File a complaint with Police Authorities
  • File a complaint in the court
  • Negotiations also help in case the opponent has occupied the land inadvertently

Specific legal remedies:

  • Filing a civil suit u/s 5 or 6 of Specific Relief Act, 1963 for recovery of  immovable property
  • Executive Magistrate of the area takes action u/s 145 of the Criminal Procedure Code to prevent the breach of peace in case of property disputes.
  • Action for the offence of trespassing and illegal dispossession under Indian Penal Code

Prevention is always better than cure so it is advised that owners must ensure proper documentation and regular inspection of their properties.

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

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).

Property eviction lawyer’s advice on issues of property possessions

Property eviction lawyers

We have had NRIs come to us looking for property eviction lawyers as they face the issue of illegal possession of property. It is the most common property dispute NRIs face as they are unaware of the steps that they can take to avoid the situation.

They make investments using their hard earned money to secure their future if they return to India or to earn profits by selling the land at the higher price on a later date. But with the change in time and due to unfortunate experiences, the investment in India has reduced as people fear for the safety of the property.

Why do NRIs seek the help of Property Eviction Lawyers?

The NRIs pursue property eviction lawyers so that the legal aids can assist them in protecting their land from trespassers, encroachers and illegal possessors.

The easiest targets of the trespassers or encroachers are the Open properties that NRIs buy as investments.

Property can be taken over illegally in two ways. These are:

  • Usage of forged documents by trespassers to challenge the legal owner’s rights and forcing them to send the land at a value much lower than the true value.
  • Refusal to vacate the property by a tenant even after expiration of the lease or tenancy period and thus, overstaying illegally against owner’s will.

Thus, it is necessary for the NRIs to know about the choices available at their disposal to protect their property from the trespassers.

Protection of the property:

To prevent illegal possession of the asset, an NRI can:

  • Make use of a Special Power of Attorney (POA) to give specific rights to a trustworthy friend or relative who can regularly check the property.
  • Retain all the original and updated documents related to the property such as registered sale deeds, title deed, possession letters, tax bills, maintenance receipts, telephone and electricity bills, etc. with one’s self.
  • Take help from an expert property lawyer to implement any legal documents such as lease agreement, tenancy agreement, and caretaker agreement.
  • Before signing any legal document, enquire and aware one’s self about all the laws regarding the maintenance of assets, lease, or eviction of tenants.
  • Provide written information about the property and one’s absence from India to the police.
  • In order to prevent any trouble in future, register and present a photocopy of the tenancy agreement to the police after execution.
  • Interact and stay in touch with the neighbours and managers of the building so that if anything illegal happens to the property, they inform the owner.
  • Have regular visits to the property so that the locals can know about the owner of the property and people don’t consider it an easy target for trespassing.

It may happen that even after taking all the necessary, precautionary steps, following each and every law, one becomes a target of illegal possession of property. If this happens, one shouldn’t make any delay in taking mandatory steps, such as seeking help from property eviction lawyers, to get his/ her property back.