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Landlord’s guide to eviction

Post by on Thursday, April 21, 2022

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John Stuart Mill might have said that- Landlords grow rich in their sleep without working, risking or economizing! But little did he know that today the biggest threat that a landlord faces is from his own tenant. In today’s age where it is difficult to make ends meet and it is extremely cumbersome for most to even arrange food on their plates, dreaming of a house in the city is something that very few can afford. While buying a house seems to be an inaccessible goal for many, even renting one is becoming difficult. This is so because even the landlord know that they cannot afford to give their property to just about anyone on rent in the hope of earning the monthly rental as it is a daunting task to evict a tenant and get your property back even through the legal process.

A large portion of the population today still prefers to live on rented premises. The benefits of living in a rented property are huge. Being a developing nation when we are on our way to building a great infrastructure, the first thing that comes to mind is the flexibility of living wherever you want vis a vis a landlord who is stuck wherever it is that he buys his house. A tenant can live even in the most expensive localities at the cost of paying a steeper rent while a landlord will have to arrange an excessive amount of money to buy the same property in a posher area. While buying a house on loan you need to pay 20%(approx.) down payment of the total value and only 80%(approx.) of the value can be taken on loan. On the other hand, if you go for a rented house, you need to pay minimum one month’s rent (approx.) as security deposit which is far more convenient and pocket friendly.

All said and done, the allure of a self-owned home is hard to resist and given a chance, a majority of people would still prefer to buy their own homes. The idea of earning from the self-owned property is also one that carries weight and is the main source of earning for many people who are investment savvy and well versed with the world of property development.

Approximately 33% of people in urban areas rent their properties to generate income which could be the only source of their livelihood in many cases. But what if the sole purpose of renting the property gets defeated and the tenant refuses to pay the rent and is also not willing to vacate the house? The feeling of helplessness that a landlord who is unable to figure out as to how to get his own hard earned property back experiences is heart-breaking .

 

Eviction laws in India 

A rental tenancy is simply a type of a lease in which the property is temporarily transferred from the owner, who is known as the lessor, to the tenant, who is referred to as the lessee, according to Section 105 of the Transfer of Property Act, 1882. But, The Rent Control Act of 1948, which was enacted by the Government of India to calibrate the rentals of real properties and to govern the evictions of tenants in India, encompasses all the provisions relating to tenants and landlords. 

The most important requirement, however, is that you should have a proper rental agreement in place with your tenant, which defines details such as the rent amount, the duration of the agreement, the security deposit, and the purpose of the stay. While tenants are protected from arbitrary eviction from their homes except for specified reasons and under specified conditions under the Rent Control Act, the landlord retains the right to evict a tenant if the tenant commits certain specified acts or if the landlord requires the home for his own personal use.

The most important document in a landlord’s arsenal is the rent agreement which clearly demarcates the terms and conditions of the contract. This agreement should clearly and unambiguously include an eviction clause that may be invoked if and when the need arises. Eviction of a tenant can only be invoked at the termination of the lease or after serving a notice under section 106 of the Transfer of Property act, 1882. If despite these requirements having been met, the tenant still refuses to vacate, the landlord shall have to file an eviction suit before the appropriate court of law.

 

Grounds for eviction of tenant in India

You can state any of the following grounds for the eviction of a tenant from your property:

 If you need the property for your own requirement or for a member of your family.

 If a tenant has leased a previously rented house/flat/property to another individual without your permission or acknowledgement.

 If the worth or value of the property has relatively decreased because of the tenant’s action.

 If the landlord plans to build another structure, which will necessitate the property’s destruction.

 If you want to construct a new structure, you’ll have to demolish the existing one.

 One can initiate an eviction suit if the tenant fails to pay the rent amount (as indicated in the rental agreement) for more than 15 days after the due date.

 If the neighbour finds the tenant’s activities distasteful, and the landlord has received complaints against the tenant.

 If the tenant has utilised the rented property for illegal purposes or for reasons not specified in the rental agreement.

 If the tenant is establishing that he or she is the owner of the rented property on purpose.

 

What not to do to evict your tenant?

Even though it is the property that belongs to the landlord, while evicting a tenant, there are certain points that he must keep in mind in order to abide by the due process of law:

 It is imperative that the basic necessities like water and electricity are not shut off in order to force a tenant to vacate. Sending goons to throw his possession out on the road and then locking the premises is also not the right method and may invoke legal proceedings against the landlord himself.

 The rental agreement must specify the time for which the premises is being rented so that appropriate action may be initiated when the time expires. 

 The requirement of providing the mandatory eviction notice must be complied with before initiating the proceeding for eviction. 

 The landlord must establish in clear terms the bona fide need for his own use in case of initiating eviction on those grounds as The Supreme Court of India has ruled that for at least five years a landlord cannot evict a tenant if the rent is paid on time and the landlord does not want the property for personal use.

 

Here are some grounds which enable you to file an eviction suit to evict your tenant:

 If a tenant is not paying timely rents: It may depend on the lease agreement as to how long a tenant can stay without paying rent. It could have provisions setting out the time period threshold after which the tenant can no longer occupy the rented premises. Lease agreements could have clauses on a ‘grace period’ up to which a tenant can stay without rent. Furthermore, negotiations can also pave the way to deciding the amount of time a tenant can live without rent. A lease agreement should include the course of action for non-payment of rent. If your tenant has intentionally not paid rent that was mutually agreed for more than 15 days from the due date, you can go ahead with filing an eviction notice.

 Tenant has sublet your property: A sublet, sometimes called a sublease, is a contract under which a tenant rents out their apartment to another individual while their name is still on the lease. The original tenant is referred to as the sublessor, and the new tenant is referred to as the sublessee. If the tenant has sublet a rented property to another person without taking the landlord’s permission or providing a written request, it becomes a ground for you to get your property vacated.

 The tenant has used rented premises for unlawful purposes or ?other purposes than those mentioned in the rental agreement.

 Any action of the tenant has led to the loss of property value or its utility.

 The tenant’s actions are found to be objectionable by the ?neighborhood and the landlord has received a complaint ?against the tenant: The complaints should be reasoned and legitimate.

 The tenant has intentionally refuted the landlord’s title in the ?rented property for an unknown reason: So a tenant once ?inducted as a tenant by a landlord, later he cannot deny his?landlord title. Thus, this principle of estoppel debars a tenant from ?denying the title of his landlord from the beginning of his tenancy. ?Howsoever defective title of such landlord could be, such tenant cannot deny his title.

 The landlord needs their property for own occupation or for any family member.

 The landlord needs their property for repairs and renovation ?which otherwise is not possible unless the property is vacated.

 The landlord intends to construct another building that requires demolition of the property.

How to file an eviction suit?

Once you’ve established the grounds on which you want to get your tenant evicted, the following procedure needs to be followed to file the suit for eviction:

Stage I - Send a notice to the tenant to vacateAn eviction notice needs to be filed in a court under the appropriate jurisdiction mentioning the reason for eviction and the time and date by which the tenant has to vacate the property and is then sent to the tenant to vacate the rental property. The landlord must give reasonable time to the tenant to vacate the rented property. Usually most tenants vacate the premises on receiving a legal notice.

Stage II - File an eviction suit: The tenant may refuse to vacate the rented property after receiving the court’s eviction notice and contest the eviction. In this case, the landlord can hire a lawyer to file an eviction suit against the tenant. The suit for eviction of the tenant is filed in a civil court under whose jurisdiction the rented property is situated.

Stage III - Final eviction notice: The court hears both sides and issues a final legal notice for eviction for the tenant based on the arguments and evidence present. The tenant has to vacate the rented property once the court sends the final eviction notice.

There are certain things a landlord should keep in mind while evicting a tenant. It is always better if the rent agreement is drafted by a property lawyer and clearly mentions and includes all the provisions related to use of property, termination of the agreement, rent amount, etc. To avoid complications in eviction process, always prefer 11 months agreement with an option of renewal. Going through the state rental laws in which jurisdiction the property is situated helps give an edge to the landlord in framing the grounds for eviction. 

The point where majority of landlords go wrong during this eviction process is by committing criminal offences like cutting off electricity and water supplies of the tenant, throwing away the tenant’s belongings or depriving the tenant from the basic utilities it is entitled to. Doing all this immediately weakens your case and a tenant has a right to file charges against such conduct of the landlord. This is the tenant eviction process in India, however, the eviction of the tenant without a rental agreement is difficult as there is no proof of property being given on rent to the tenant.

A background check of the tenant is a must before renting your property. A little effort and due diligence will save you from an expensive legal battle in the future.

 

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