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.

ILLEGAL POSSESSION – When family turns foe, homes become battlegrounds!

illegal possession

‘Till Death do us apart’ is a status that all marriages would work well on. However, real life doesn’t reflect that-separations, acrimonious divorces, partitions of property, fights over assets seem to form as much a part of the reality of marriages as honeymoons and holidays do! Deception and allegations are frequent in the course of separation; plus, property matters especially illegal possession of property forms a sizeable chunk of the problems that could occur during such situations. These issues become tougher for NRIs to handle since they cannot even be frequently in India. The legal team at NRI Legal Services is often faced with cases of this kind.

Take the case of Nimisha Porecha, owner of a reasonable size of property in the state of Maharashtra. This included five shops and a huge house at the outskirts of the city of Pune. She had moved to New Jersey, the USA about twenty years ago after her son got married in India. Unfortunately, differences started cropping up between her son and his wife pretty early in their marriage, and five years after he got married, Nimisha’s son Jaiyesh also moved to New Jersey. Back in India, Jaiyesh’s wife Niyati occupied the entire house. The fact that she had some fake documents with her to use to her advantage made the matter worse.  Worse, she gave away three of the shops on rent. When Nimisha tried to resolve the issue by visiting India, she was disappointed to see that in spite of the efficiency that the judiciary boasts of she was not able to find any respite in her case. The complexities of the legal procedures were more upsetting than reassuring. Her difficulty to travel frequently to India added to her inability to handle the issues efficiently. Nimisha had lost her husband just a year before her son’s marriage. Left alone now, she was keen to divide her property between her children-three sons and a daughter- while she was still hale and hearty. Naturally, she wanted to make sure now that Niyati would not occupy the entire property and her other children are rightfully given what belonged to them.

It was a clear case of illegal possession of property that Nimisha was faced with. She contacted the New York office of NRI Legal Services after her son saw an advertisement of the company legal expert on Television. For them to hear that the matter could be resolved without traveling back and forth to India, was a blessing enough. She handed over the relevant documents to the local office and then onwards it was sheer coordination between the NRI Legal offices in New York and Chandigarh, with adequate support of the legal team in Maharashtra that sailed mother and son through the entire process of law. They were reassured that they could be in touch with the legal experts as frequently as they wanted the video chatting system. Resolving issues of fraudulent documentation, forgery, and possession occupation, the company lawyers were finally able to address the matter in a smooth and efficient manner for the mother-son duo.

During any such case, NRI Legal Services can assist in dealing with the illegal possession of property. For NRIs, getting their property vacated or getting illegal possession evicted is not an easy task – especially since they can’t always be there to take care of their property matters. Sometimes, they are not even aware of their rights and the procedures they can adopt to save themselves from fraud. Appropriate legal consultation is necessary for resolving these matters in a fair manner. The company has a real estate division offers services to clients for handling all such issues. A comprehensive report is prepared as per the requirements of the client.