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.
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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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A promising development of any country depends on its citizens and authorities that run its government. Since the past few years, the Indian government has been taking substantial steps to get rid of the parasites such as corruption, which were slowly destroying the country’s base and face. One of the major issues that the government is currently focusing on is corruption in Real Estate.
The most prevalent problems in real estate that the people face are illegal possession, fake deals, delayed transfer of assets and funds. These are even more prevalent among NRIs.
The NRIs face such issues when they either invest in real estate in India or when they sell their property in India.
When investing in Property in India
The primary objective of NRIs for investing in real estate in India is to earn maximum returns or security. Unfortunately, this goes down-hill when they have to face challenges such as delayed or non-delivery of property, fake deals or fraudulent builders; incurring massive financial losses.
Some of the issues that investors face are:
- Issues in the transfer of title of the property
- Poor quality of the delivered projects
- Treachery by the seller regarding – showing and selling different properties or not handing over the property at all or submitting fake documents.
- Purchased land falling under village survey or city survey.
If the area falls under village part and is an agricultural land, it is a huge problem for the NRI because as per the rules of the Indian government, NRIs cannot invest in Farmhouses, Agricultural Land, and Plantation Property.
- If the area comes under city part, the NRIs are allowed to invest in residential or commercial property.
- It may happen that at the time of investment the builder does not ask for the stamp duty and registration but later on the NRI may face problems because of the absence of such relevant documents regarding these.
- Issues due to the lack of all or some of the following terms in the property agreement:
- date of delivery
- date of possession
- the contract amounts
- regular maintenance fees
- Purchased building non-compliant with the state laws and bye-laws.
- Lack of detailed drawings of structural details, electrical fittings, plumbing, drainage and water supply can lead to several problems in the future.
- Improper or insufficient or forged signature on the agreement.
Even a small negligence can lead to a lot many troublesome circumstances. Though it is challenging to take care of every little nuance, it is crucial to do so, and one should not hesitate from taking adequate help whenever needed.
Land, which is considered not just the most valuable asset but also the best possible asset to invest the money in, is most often subject to encroachment if left unattended. The legal process of eviction is quite cumbersome and time-consuming as the possessor enjoys certain rights even against the rightful owner. Therefore, a person is often appointed to look after the property when the owner is not in a position to personally do so especially as in case of Non-Resident Indians (NRI). A caretaker could be expected to rent out the property and provide the owner with the profits arising therefrom, or simply to maintain and manage the property and deal with any legal proceedings if so arises. Usually, a General Power of Attorney is made in his favour for the aforesaid purpose. The caretaker could provide such services either out of love and affection or for some consideration such as money or rent-free stay.
Though relatives, servants or some professional agencies are appointed to look after the property, they cannot be blindly trusted. They are required to report regularly to the owners with respect to major changes brought into the property, etc. Often, there are frauds committed on the innocent owners who are not in direct control over the property and are harassed by the due process of law which involves tedious proceedings. The owner has either to be at the mercy of the caretaker and make a compromise or wait for decades for justice to happen.
Clearing the position of a caretaker, the honourable Apex Court held in Maria Margarida Sequeria Fernandes and Others v. Erasmo Jack de Sequeria (Dead) through L.Rs. [2012(3)SCALE550]and Southern Roadways Ltd., Madurai v. S.M. Krishnan [(1989) 4 SCC 603] that the caretaker holds the property of the owner only as his agent and on his behalf and is required to hand over the property to the principal i.e. the owner on demand. Longtime gratuitous stay in the property does not create the right, title or interest of caretaker in it. Also in Sham Lal v. Rajinder Kumar & Others [1994 (30) DRJ 596] it was held that the servant’s or chowkidar’s right to possession cannot exclude the master or real owner of his similar right.
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.