Legal remedies for encroachment of property by neighbor

Property encroachment by the neighbor – the legal remedies

A person buys a property either for investment or for own use. In both cases, one wants to reap the benefits which flow to the owner of the property. At the same time, it is vital that the owner remains vigilant and protect the property from illegal/unauthorized intrusions. In case the land/property is left unattended, especially as in case of NRIs, the chances are high that the unlawful occupants will take advantage of the same and encroach upon the property. 

Property encroachment occurs when a person without any authority or consent: 

  • occupies the property or
  • constructs some structure over the property of another person (owner)

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An addition made to one’s property which crosses the boundary and falls upon the property of another person in violation of his rights is property encroachment. For instance, a neighbour constructs a balcony /shed /garage which extends to the adjacent property.

Property encroachment can be intentional or unintentional. It is unintentional when boundaries are ambiguous. An action lies against the encroacher. 

There is a difference between trespass and encroachment. In trespass, it is the unauthorized interference of a person in the property. It is an unlawful entry into the property of another person. Construction of a structure etc. is not essential. On the other hand, property encroachment is not just an illegal entry but also changing the structure/status of the property.

Recommended reading: Reserve Bank of India Guidelines on NRIs Remittance

The rights and remedies available to the owner against encroacher are the same as in trespass. 

  • Trespass is both a civil and a criminal wrong. Under the Indian Penal Code, trespass with criminal intent is an offence. The law permits the owner to use force against the encroacher if justified by the circumstances. He can cause grievous hurt or kill the intruder. 
  • The owner has the right to protect his property by stopping the encroacher from invading his land. 
  • The owner can lodge FIR for criminal trespass.
  • The owner can file a suit for injunction. It is an order of the Court vide which the wrongdoer is asked to perform or restrained from performing a particular act. The directive can be temporary or permanent.  
  • The owner may also seek damages. It is an amount paid as compensation to the owner for loss suffered by him. Damages for mental harm are also permissible. 

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There are many factors which determine the relief to be granted. The court orders removal of encroachment if the injury caused to the owner is irreparable. Sometimes the encroachment is innocent. The hardship caused to the encroacher by removing the encroachment is much more than the loss to the owner. Then the Court may not order the removal of encroachment. 

The owner must possess title deeds and survey maps of the area. It will help to establish his claim against the encroacher.   

Prevention is better than cure. Therefore, it is advised to 

  • Regularly monitor the property
  • Be watchful towards the acts of the neighbours. 
  • Any settlement for allowing the use of one’s area by the neighbour should preferably be through a written agreement.

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Property Disputes among Siblings

Property Disputes among Siblings

Property disputes are common among siblings. The property becomes a bone of contention among family members irrespective of the financial status of the family. There is a desire to get the maximum share if there is a distribution of family property

Apart from greed, one other cause of dispute of property could be the lack of knowledge and clarity about the property inheritance laws.

In India, there is a strong culture of holding the property jointly within a family. But once the eldest member dies or there are differences in the joint family business, the problem of distribution of property arises. 

The main question is – are siblings entitled to the property as being the legal heir of the deceased or as per the tenor of his Will?

The dispute among siblings mostly relates to the share each will get and the settlement of debts and liabilities. The legal advice of an expert always helps in such matters.

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

Intestate Succession:

When a person dies without a Will, his property is distributed as per inheritance laws.  In India, the inheritance of property is governed by:

  • Personal laws
  • Customary laws
  • Legislative laws

There is a lot of ambiguity about personal and customary laws.  

We have The Hindu Succession Act and the Indian Succession Act, but the same applies to a section of the population only. Even under the codified law, there is a difference in property distribution rules if the property is ancestral or self-acquired. 

Under the Hindu Succession Act, a person/owner is free to deal with his self-acquired property. The ancestral property cannot be distributed as per free will. The coparceners (a small unit within a family) have a birthright in it. 

Brothers and sisters are entitled to equal shares in the property of their mother or father under Hindu law. While considering inheritance, the term son and daughter under Hindu law includes adopted son and daughter but not stepchildren. Thus siblings who are stepbrother and sister are not entitled to share in the property of the father.

Read: Married Woman’s Share In Father’s Property

Property dispute and the Will

Will is a legal document wherein the testator expresses his desire for distribution of his wealth after his death.

Even if there is a Will, property dispute can arise among the siblings. The beneficiaries (siblings) are dissatisfied with the tenor of the Will. The distribution of property seems improper to them.

A Will can be challenged on aspects like improper execution, fraud, forgery, undue influence etc. The parties level allegations against each other and try to prove that the Will is invalid.

Read: Property rights of a son on mother’s self-earned property – Issues and the Law

Property dispute and partition

It is not easy to decide the share of each member in case of joint family property. It is better to have a family settlement deed (an agreement based on mutual understanding). A written agreement is preferable over verbal/oral agreement. Once the shares are decided, the property gets partitioned, and the siblings get their respective shares.

Property disputes are common among siblings but can be avoided with timely legal advice.

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What To Do If Your Property Possession Has Been Delayed?

What To Do If Your Property Possession Has Been Delayed

When the builder delays the possession, it results in harassment to the buyer, and the excitement of owning a new house is also lost. Besides, there are financial losses also.

Nowadays, the Government is coming up with pro buyer rules and regulations for tackling the problem of delay in possession. Even courts are taking stringent action against the builders who default.  

Also Read: Does Consumer Has The Right To Damages And Recovery If Possession Is Delayed?

Remedies available to the buyer are as follows:

Filling a complaint – A complaint can be filed by the buyer before

  • civil court – A civil court may order for a refund of the amount already paid, compensation or completion of the project.
  • consumer forum – awards compensation
  • criminal complaint – a criminal case can be filed in a court for cheating or  breach of trust

Authority set up under RERA – Real Estate (Development and Regulation Act, 2016). It is a new law under which the Government sets up a body known as Real Estate Regulatory Authority.  A complaint can be filed before it. Buyer may hire a lawyer or himself fight his case before this Authority. A complaint is filed if the builder is not compensating the buyer. RERA is applicable only for larger projects where the area of land to be developed is more than 500 square meters.

Also Read: Delay in Possession of Property by the Developers

Compensation: A buyer can seek compensation from the builder –

  • Compensation as per the compensation clause in the agreement signed by both the parties – by sending a legal notice or filing a case in civil court
  • Compensation – by filing a complaint in Consumer Forum 
  • Compensation under RERA – Buyer is given the right to withdraw from the project if the builder has not handed over the possession in time. Buyer can seek compensation for the entire payment made if he withdraws from the project. Otherwise, he has a right to be compensated for period of delay.

Arbitration:

If the agreement for sale of the house contains an arbitration clause, the dispute is resolved through arbitration. The arbitrator may order compensation. The buyer will have to move the civil court for implementation of the award passed by arbitrator. 

The buyer can choose Consumer Forum even if there is an Arbitration clause.

Other remedies:

The agreement itself may provide for the penalty in default. The buyer can get the clause enforced.

What should be the duration of delay in possession?

Compensation can be granted even when there is a delay of one day.

Choice of remedy: The buyer can choose:

  • At the first instance, send a legal notice. If the builder does not respond, an appropriate remedy can be availed.
  • If a Regulatory Authority is set up in a state by the Government under RERA, a buyer cannot seek remedy in a civil court in that area.
  • If no Regulatory Authority under RERA has been set up by the Government for a State, the buyer can approach civil court.
  • A buyer can also approach consumer forum for redressal of his grievance as he is a consumer and services provided by buyer are deficient.
  • A criminal complaint can be filed depending upon the facts of the case. In a criminal complaint, the builder is punished if found guilty, but the grant of compensation is the discretion of the court.

Also Read: Issues with property developers

Generally, the law does not permit availing more than one remedy at the same time. A buyer can approach consumer forum and RERA both, but he has to make a choice. One can withdraw his case from Consumer Forum and file the same before RERA as it a special law enacted for the protection of home buyers.

Consumer Forum and RERA can award compensation and impose penalty also. RERA can impose more stringent penalty.

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.

Gurmail Thind

NRI Legal Services Testimonial

To Whom It may concern

I am glad to have found NRI Legal Services in England so we could meet them and discuss our issues in India. We were battling with our land dispute in India and were in the midst of chaos. NRI Legal Services came as a much-needed help, an organisation who guided us in the most appropriate manner and strategized for us. We have finally resolved our dispute with all the right guidance by this organisation.

As a client, I am very satisfied with their work, service, communication and professionalism. We are happy with the services provided and highly recommend their services to any person looking at resolving their property issues in India.

Gurmail Thind, UK