Illegal possession of the property occurs when an individual who is not the actual owner of the property but has possession or occupies the property in the absence of the owner’s consent. With the consent or any agreement between the owner and the other party, possession of the property by the occupant is considered to be legal. Therefore, properties are offered on rent to the tenants by the owner for a specific period by making a proper rent agreement. The landlord provides the tenant with limited rights to use his property for a specific time period. If the tenant occupies beyond the period for which the property has been rented, will amount to illegal possession. In order to prevent the tenant from illegally occupying the property, the owner has the right to take legal recourse and retain back his possession.
What Is Illegal Possession Of Property
Wrongful possession or illegal occupancy of a property means a person who is not the rightful owner of the property, or occupies it with any wrongful means.
Illegal Possession Scenarios
As mentioned earlier, when a property is in the possession of an individual who is not the rightful owner of the property, it amounts to illegal possession. Illegal possession can occur on the account of false documents or coercion or force. One of the common instances of illegal possession is the illegal occupancy of the tenant over the property of the owner. This leads to violation of the rent agreement as well as infringement of the rights of the landlord.
Another instance of illegal possession is when the owner of the property is not residing in the location where the property is situated. For example, NRI who do not reside in India but have a property in India mostly face the illegal possession issue. As they do not make frequent visits or are unable to manage their property, they hire caretakers or servants to look after their property. Often the property in possession of the caretaker or any relative of the owner having possession of the property over a long period leads to adverse possession.
Adverse Possession
The law allows the tenant or any other party, other than the owner of the property, who has the possession of the property continuously for a period of 12 years or more, to have the possession of the property even though it is illegal. This kind of possession is known as adverse possession. The rights of the owner of the property become vulnerable if the other party not being the actual owner takes possession of the property for more than 12 years. Provisions with respect to adverse possession are provided under the Limitation Act 1963.
Legal Action Against Illegal Possession Of The Property
The first and foremost thing the owner can do is to inform the local authorities such as the revenue department, and file a complaint with police authorities. Further, the following actions can be taken by the owner against the illegal possession of his or her property.
The owner of the property must hire a good property lawyer to deal with the case of illegal possession. The lawyer will help in sending a legal notice to the trespasser or illegal occupant having the illegal possession of the property. A claim can be filed by the lawyer based on the title of the owner. Under section 5 of the Specific Relief Act 1963, the owner of the property is allowed to get possession by his or her title.
A suit can be filed by an individual under section 6 of the Specific Relief Act, if he or she does not have the title of the property, however has the possession of the property previously. The suit can be filed within 6 months from the date when possession was taken from them.
Under section 145 of the CrPC, the owner of the property can take legal action against the illegal occupant. By hiring a criminal lawyer, the owner can file a complaint under this section against the person who is in illegal possession of the property. This complaint has to be filed before the Superintendent of Police of such area in which the property is located.
The owner of the property can also file a private complaint before the court through a lawyer by executing special power of attorney. Generally, the lawyers dealing with the property matters take care of filing of suits, appearing before the court and certain other formalities concerning the dispossession of the illegal occupant.
Steps To Take For Avoiding Illegal Possession
If a property has been illegally occupied, one of the best methods to get back the property or restore possession of the property legally is to visit court and file a civil suit. There are several legal remedies available to the individuals for restoring possession of the properties and protection against trespassing by a third party of illegal interference with the peaceful possession.
Well-defined contracts- The individual should always define the status of the occupant who has possession of the property. Therefore, well-defined contracts must be made while hiring a caretaker or renting the property to a tenant.
Changing tenants- The property should not be in possession of any person other than the owner for a long period of time. It is important for the landlord to change their tenants from time to time. Due to this reason, generally, houses are rented for a period of 11 months and subsequently renewed including the rent agreement, if the tenant wishes to stay further.
Constructing Boundary walls- Construction of the boundary walls is very important as it marks the area of the plot owned by the owner, thus, keeping away the trespassers.
Charge/ Regular Visits should be given to any other person if the owner of the property lives far from the location of the property for ensuring that the property is free from any illegal activities or possession. Keeping a close watch on the property and making frequent visits without causing any disturbance to the tenant, if any, will keep the property safe and away from being illegally possessed. As mentioned earlier, if an individual does not reside in the place where the property is situated then they can appoint a caretaker or someone in charge for performing the duties.
A signboard warning the trespasser: The signboard helps to know that someone owns the land and trespassers will be prosecuted.
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