Tips to deal with illegal property possession


Amid rising instances of land grabbing and illegal occupation of properties, we look at what a landlord can do, to steer clear of trouble

Among the many cases that pertain to land in India, a large number are related to illegal property possession. Owing to the sheer worth of property, they often become subject to unlawful occupation by unscrupulous persons. Such entities also resort to forging of legal documents, to prove their wrongful ownership over a property. Between flats and plots, the latter are more vulnerable to unlawful possession, as it allows wider scope for illegal occupation.

 

Illegal property possession

 

What is illegal property possession?

If a person, who is not the legal owner of a property, occupies it without the owner’s consent, it would amount to illegal possession of the property. As long as the occupant has the owner’s permission to use the premises, the arrangement would have a legal validity. That is why properties are offered on rents to tenants under lease and licence agreements, under which the landlord provides the tenant with limited rights to use his property for a specific time period. Inhabiting the premises after this timeframe, would amount to illegal possession of property by the tenant.

However, the worst part is, if the tenant continues to occupy the property for a period exceeding 12 years, even the law will enable him to continue the illegal possession. This is known as adverse possession in legal parlance. In case an owner does not stake his claim over his property for 12 years, a squatter can acquire legal rights over the property. Provisions on adverse possession are made under the Limitation Act, 1963.

 

How to deal with illegal possession?

Property owners have to deal, not only with outside entities but also keep an eye on their tenants, to ensure that their property does not fall prey to any fraudulent activity.

This becomes extremely important to avoid adverse possession of the property by the tenant, which makes him eligible to claim the property legally. Under the provisions of the Limitation Act, you may lose ownership over your property, if someone else is living in it for an uninterrupted period of 12 years and claims ownership through adverse possession. The law defines adverse possession as a property’s hostile possession, which has to be continuous, uninterrupted and peaceful. Here are some ways to avoid this:

 

Keep changing tenants

In view of this legal limitation, it becomes important for a landlord to change their tenants from time to time. This is also why most landlords provide their homes for rent only for 11 months and subsequently, renew the rent agreement in case they are comfortable with prolonging the stay of their existing tenant.

See also: All about rent agreements

 

Get a boundary wall constructed

Construction of a boundary wall is the first thing one has to do, in case of plots and land parcels. This has to be done, irrespective of whether the owner lives close to the location or not. Ideally, a housing unit must also be constructed to minimise the scope of interference from land sharks. Those living far from the location must put somebody in charge, to regularly visit the property, to ensure it remains free from illegal activities. While it may not always be a viable option, hiring a caretaker would also be a good way to avoid illegal occupation. This is especially true, in case of non-resident Indian (NRI) plot owners.

 

Legal action against illegal possession of property

Those who have been at the receiving end of an illegal activity, can seek relief under various provisions of the Indian law.

Firstly, you should file a written complaint with the city’s superintendent of police (SP), where the property is located. In case the SP fails to acknowledge the complaint, a personal complaint in the court concerned can be filed.

You could also file a police complaint about the same. Keep a copy of the FIR safe for future references. The authorities will be obliged to take action under Section 145 of the Code of Criminal Procedure (CRPC).

You could seek relief under Sections 5 and 6 of the Specific Relief Act, under which a person dispossessed of his property may recover his right, by proving previous possession and subsequent illegal dispossession.

 

FAQ

Who can claim adverse possession?

A person who is not the original owner, can claim adverse possession of a property, if he has been in possession of the property for a minimum of 12 years, during which the owner takes no legal effort to evict him.

What is possession in property?

Possession refers to the act of gaining or exercising physical control or custody of the property.

What is the transfer of possession?

A transfer of possession refers to a change or lapse in the possession of an asset.

 

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