There are several problems that land owners may face in India where the judicial system lags and unlawful acts can often be committed with little consequence. Under the umbrella of ‘property problems’, perhaps the most common and feared is illegal property possession. This happens when a person, who isn’t the owner of a property, occupies the property without the permission of the owner. The squatter may go to great lengths to prove ‘ownership’ of that land by forging documents and lying about their right to it. Plots of land are usually more likely to be grabbed by unlawful possession over homes such as apartments as homes are usually easier to keep track of and have a greater level of security to protect against squatters.
Illegal property possession can be a huge problem as, when a squatter lives on a property (uninterruptedly) for a period of 12 years, they can even claim a right to own it through a legal loophole called adverse possession. Through adverse possession, a non-property owner can actually gain ownership of the property they have been occupying if certain criteria have been met.
Therefore, it’s vital that property owners understand what illegal possession and adverse possession are to know how to prevent losing their properties.
What is illegal property possession?
Illegal property possession is when a person who does not own a property legally occupies it without the permission or consent of the owner.
If the person occupying the property has the consent of the owner to use the property then they would be legally valid in doing so. This happens when a property is rented or leased out to tenants. In these cases, the tenants are given limited rights to use the property for a specified time, outlined by the landlord. If the tenant continues to stay on the property after the specified time has passed, then they would be in illegal possession of the place.
What is adverse possession?
Adverse possession is when a tenant occupies a property for over 12 years consecutively and without interruption. So, if a person has lived on a property or land that has no title for 12 years consecutively with the owner’s consent, they have the legal right to claim ownership of that land. When an owner fails to remove a trespasser from their property over a certain time period, that owner can lose ownership of their property.
The term ‘Adverse Possession’ was established by the Supreme Court of India in the case of ‘Amarendra Pratap Singh v. Tej Bahadur Prajapati’. It was first introduced by British Rulers and established to help the usage of land. But it later started to negatively impact property owners when squatters and tenants started to take advantage, using the law for hostile possession and denying the land owner their right to their property.
Dealing with illegal possession
Property owners need to be vigilant to make sure their property is not at risk of being possessed illegally. It’s not just strangers that are capable of duping well-meaning landlords, tenants too may have ill intentions when residing on your property. Here are some precautions and measures to take to keep your prized possession safe.
1. Check frequently with visits
If you leave your property unattended, you are putting it at great risk of criminals trying to seize it. This is especially true for property located in expensive prime areas. Ensure that your property does not look like it has been forgotten. Keep it maintained and make security arrangements if you cannot attend to it regularly. This could include getting a security guard if you have a house and land, and constructing a boundary wall. The best way to ensure that your property stays safe is to check on it often with personal visits.
2. Change your tenants often
Do not let the same tenant reside at your property for an extremely long period of time. It’s important to change your tenants after a few years and have a legally-valid rental contract that states all the terms and conditions that the tenant is to follow clearly. Most landlords rent out their homes for 11 months before the rent agreement is renewed. This gives the landlord the choice to continue with or evict their existing tenant legally.
3. Construct a boundary wall
A boundary wall is very essential for plots and land parcels. Even if you live on or near the property, a clear boundary wall is a necessary expensive as it gives outsiders clear indication that the property is owned. A residential unit can also be constructed to limit the interest of land sharks. If you happen to live away from the area of your property (especially if you are a non-resident Indian – NRI), it is advisable to have a trusted caretaker that stays on the property or visits regularly to prevent illegal activities.
4. Put up a warning sign
Even with a boundary wall erected, it is advisable to include a warning sign on the outside of your property. Putting up a no-trespassing sign board can deter criminals away. Also mention that the property is private and that trespassers will be prosecuted.
5. Be vigilant when you rent out your property
In some cases, tenants may refuse to vacate properties they have rented. This may be rare but it is not unheard of. Make sure that you verify your tenants carefully before agreeing to rent out your space to them. The tenancy has to be protected with a registered rent agreement to avoid legal pitfalls. Once the property is rented out, keep an eye out for strange activities or behaviour with regular checks with the tenant as well as visits. If you live away, neighbours or friends and family nearby should check on the premises in your absence.
Taking legal action against illegal possession of property
There are various provisions of the Indian law to help those who have fallen victim to illegal activities regarding property possession.
If this should happen, you must first file a written police complaint with the city’s superintendent of police (SP) of the area where the property is located. If the SP does not acknowledge the complaint, you can file a personal complaint in the court concerned.
You can file an FIR as well. Keep a copy of the complaint with you. The authorities will have to proceed under Section 145 of the Code of Criminal Procedure (CRPC).
There is also the Sections 5 and 6 of the Specific Relief Act, for those who have been dispossessed of their property. They may recover their right to the property by proving previous possession and subsequent illegal dispossession.
Indian Penal Code sections that apply to situations regarding illegal property possession
1. Section 441: Defines criminal trespass
“Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit ‘criminal trespass’.”
2. Section 420: Deals with cheating and dishonestly inducing delivery of property
“Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
3. Section 425: Deals with mischief
“Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof destroys or diminishes its value or utility, or affects it injuriously, commits ‘mischief’.”
4. Section 442: Deals with house trespass
“Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit ‘house-trespass’.”
5. Section 503: Deals with criminal intimidation
“Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.”
