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.

Deferment of Possession – Trouble for Defaulters

Deferment of Possession

Today’s harsh reality coaches one to fight for what is theirs, even though the affluent and influential throw obstacles in one’s way. Buyers usually spend humongous amounts of money to buy something as essential as a house or even a piece of land for example, and yet, when upon contractual terms they are supposed to be given their lawful property, they are denied this right.

Various provisions of India’s civil, consumer or criminal law help in taking action against the seller in this case, such as sending a legal notice to the seller, and claiming refund of payment made to him along with interest/damages, as the case may be. In case of delayed possession of a house, buyer may also claim the consideration that will be spent on buying or renting an alternative accommodation. A consumer complaint may be filed against the seller under the Consumer Protection Act, 1986 for ‘deficiency of services’, especially since the landmark case of 1993- Lucknow Development Authority v. M.K Gupta- wherein remedy for all housing construction activity was construed under Consumer Protection Act. The International Consumer Rights Protection Council also lists numerous grounds for liability in Consumer Court, the prime one being ‘Delayed possession beyond stipulated time period’. Furthermore, a suit may be filed under the Indian Contract Act, 1872 for non-fulfilment of contractual liability.

Some prospect also lies in the recently introduced statutes. The Real Estate (Regulation and Development) Act, 2016 (RERA) makes it necessary to furnish details regarding completion and delivery of property, without which, the seller/agent may be held liable and fined or prosecuted. If delivery is not done on the contractual date, the entire money invested by the buyer, along with the agreed interest rate mentioned will be refunded under the act. One more option would be to exercise the arbitration clause, usually present in the builder’s agreements, that states a pre-mediated compensation in case of default by either parties.

Certain states do have specific provisions for their jurisdiction, such as a remedy under Section 8 of the Maharashtra Ownership Flat Act, 1963, in case there is a delayed possession of flats etc.

Remember always, that any problem can be solved. All we need to do is open our eyes to possibilities, and have some faith.

Delayed Possession of Property

DELAYED POSSESSION OF PROPERTY

A person wishing to buy the property invests his hard earned money into the construction project. However, where the seller fails to transfer the possession of property in time, the buyer not only suffers monetary loss but also undergoes mental harassment and is left to the mercy of the seller. He suffers losses on the account of payment of rent, EMIs on home loan, or increased price of building material with time, etc., unlike profits, which he could have earned had he invested the money in some other long-term investment project. It is often alleged that the promoters of the project invest the liquid cash of the consumers in some other projects and make to them some lame excuse and ask for timely extension.

The old principle that “time is not the essence in case of sale of immovable property” is more or less outdated in the present scenario where the prices of property are ever-changing (Mrs. Saradamini Kandappan v. Mrs. S. Rajalakshmi & Ors.). Whether time is or is not the essence has to be ascertained from terms of the contract, nature of the property and the surrounding circumstances (Chand Rani v. Kamal Rani). However, if there was delay for the reasons beyond the control of the seller, he can claim a defence.

To cater to the issue of delay in transfer of possession; civil, criminal and consumer laws have been introduced to the rescue of the property buyers. A buyer has the following remedies against the developer:

  • Where the property is not transferred in time i.e. the terms of contract are breached, the buyer can repudiate the contract with the seller and claim refund along with interest or damages.
  • Buyer can also file a consumer complaint for ‘deficiency in services’ under the Consumer Protection Act. Merely because the person is an NRI or has other properties in his name doesn’t disqualify him to fall within the ambit of the term ‘Consumer’. If the property proposed to be purchased is a residential plot, there is always a presumption that it is to be used for personal and not commercial purposes. Burden of proof is on the opposite party to prove otherwise.
  • The buyer can continue with the contract despite its terms being breached and can claim compensation.

Recently, the government has come up with Real Estate (Regulation and Development) Act, 2016 which inter alia aims to protect the interest of the consumer and to ensure that the sale of plot, etc. is in an efficient and transparent manner. This Act requires the promoter to make a declaration with respect to the time in which the project would be completed and a written affidavit along with documents authenticating the title to the property. The Act also requires the ‘agreement to sell’ to specify the date of possession and rate at which interest would be payable in case of default. All this has been done to ensure timely transfer of possession.

Delay in Possession of Property by the Developers

Delay in Possession of Property by the Developers

The Indian Government has been taking several steps such as Demonetization, RERA, GST, etc. to create a transparent and corruption free economy.

The Real Estate Regulation Act has been implemented to protect buyers and increase the investment in the real estate sector. The realty sector is a major contributor to the GDP of the country and the fall in the investment has affected country’s growth a lot.

The delay in possession of the property by the developers reduces their credibility in the eyes of the buyers. It also causes harassment and forces consumers to take action against them like filing a case, reducing the investment, etc.

The case of a harassed consumer:

In a recent case that we came across, Mr. Kunal had approached us to tackle the situation in which he had not been given the possession of his property till July 2017, even though he was promised that it would be handed over to him by July 2013.

He approached us with queries about provisions under RERA to protect his interest as a buyer and wanted to be aware of what action he could take against the developer.

RERA is an act that has been laid down by the government after observing the rising rate of buyer-developer disputes.

Provisions to protect the interest of the buyers under RERA

  • The developers are required to register their project with the State’s Real Estate Regulatory Authority so as to increase their credibility.
  • 70% of the amount is to be deposited in a separate account and is to be used only for the construction purposes ensuring timely delivery and any deviation will be punishable.
  • All the approvals have to be taken before initiation of the project to ensure timely delivery.
  • The buyer will only pay for carpet area, not for the super built-up area.
  • As for the delay in possession, the buyer has the right to claim an interest of 10.9% per annum.

Legal Action against the Builder for Delay in Possession of Property

The buyer can:

  • Issue a legal notice to the developer and demand for refund of the sum paid along with interest.
  • File a case in the Consumer court against any negligence on the builder’s part. For property:

Over Rs. 1crore – with the National Consumer Forum

Between Rs. 20 lakh to Rs. 1 crore – with State Consumer Forum

Up to Rs. 20 lakh – with District Consumer Forum

  • File a case under Indian Contract Act for any damages or lack of action, if an agreement was signed.
  • File a criminal trial to claim misrepresentation and fraud.
  • Claim the amount that would be equivalent to the cost of the property that you would have acquired as an alternate due to the delay of possession of the property by the developer.

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.