April 16, 2023
April 16, 2023
Most of the property owners face a situation where the tenant refuses to pay the due rent for a prolonged period. Under this guide, we will be discussing various methods to be considered to evict a tenant who is not paying the rent or vacating the property. Eviction is the process under which the property owner can evict the tenant from his property. The contents of this guide shall not be taken as legal advice, and it is always better to consult a practicing advocate for any legal advice.
The first and foremost step required to avoid any conflict with your tenant is to have a properly drafted Rent Agreement duly signed and stamped with your tenant. The Rent Agreement shall include key details like the rent amount, security deposit, tenure of the stay, purpose of the stay and so on. In the absence of a valid Rent Agreement, it will be complicated for you to establish the lease arrangement with your tenant in court. Sometimes, it would be difficult for you to evict your tenant from your property for years in the absence of a Rent Agreement. As per the recent Supreme Court order, a tenant can continue to stay at the rented property for five continuous years. To avoid such a situation, it is always better to have a properly drafted and enforceable Rent Agreement.
If the property is rented for a period of more than 12 months, it is mandatory to have the Rent Agreement registered with the sub-registrar concerned where the property is located. If not registered, you cannot approach the court to execute the agreement and the agreement between you and the tenant will be nullified. If the Rent Agreement is for a period of fewer than 12 months, the registration of the document is optional, but it is better to pay the applicable stamp duty and get the document notarized from the location where the property is located.
The property owner does not have any right to evict the tenant forcefully or use any other illegal methods. Using any such illegal methods or taking the law into the hands will make the property owner liable to pay compensation and other penalties to the tenant. Thus, it is better to follow the applicable rules and regulations and involve the state in evicting your tenant.
The rental disputes are covered under the Rent Acts of the states concerned where the property is located. In Some cases, the provisions under the Transfer of Property Act are also applicable.
The following are some of the steps that can be taken by you as the property owner to evict the tenant:
If your tenant is not making the rent despite repeated verbal requests, you can send a Late Rent Notice to remind the tenant that their rent is due and give them notice of late payment prior to escalating the matter to eviction or other serious legal action. Under this notice, the tenant will be asked to settle the outstanding rental payments within a specific period.
The Notice includes information for identifying the property owner and tenant, details about the property and the lease agreement, including the address of the rental property, as well as the late charges as dictated by the lease. In most cases, the court or Rent Controller will ask you to submit the proof of document warning the tenant of outstanding payments and even if not, sending a Late Rent Notice will help you prove the leniency you have shown to the tenant before evicting them from the property.
Sending a Late Rent Notice and keeping a record of the same will help you submit it as proof of first warning if the case is presented before a court.
Despite sending a Late Rent Notice, if the tenant is not making the payment, you can send an Eviction Notice asking the tenant to vacate the property within a specific period.
The Eviction Notice can be used as a warning letter before proceeding with any legal action. It doesn't mean the actual eviction; it is the first step to initiating one. As mentioned before, the Landlord fixes a period for the Tenant to vacate the property.
The property owner can use this letter not only for a temporary rental arrangement but also for fixed-term rental arrangements on valid grounds either mentioned under the Rent Agreement or as per the applicable laws. It is always better to understand the applicable state rental laws where the property is located before initiating any proceedings to evict the tenant from your property.
To avoid any legal action, you should make sure to give sufficient time to the tenant to vacate the property. The notice period should be in accordance with the Rent Agreement, or such a minimum requirement prescribed under the state laws concerned (15 days in most of the states). If the time provided to evacuate the property is not sufficient, the court may impose a penalty on the property owner.
The details included under this letter shall be correct to avoid the dismissal of the case in court. There are instances where the suit to evict has been dismissed due to incorrectness in the Eviction Notice. The time provided to vacate the property shall be either as mentioned under the Rent Agreement or if not mentioned, as per the Rental Act of the concerned state where the property is located. It is always better to provide a reasonable time for the tenant to vacate the property.
If there is more than one tenant, the notice must be served to all of them. Serving notice to any tenant will not be treated as serving notice to everyone on the property. It is always better to serve the notice through a registered post and keep the receipt of the delivery to produce it before the court as evidence of delivery.
The Eviction Notice may initially be served by the property owner and if no response is received within the specified period (as may be specified in the notice), the notice may be served on the Tenant through a practicing advocate.
If the Tenant doesn't vacate after the period mentioned in the Eviction Notice, you can file a civil petition in the office of the Rent Controller or appropriate court of law. In this case, a lawyer who specializes in property disputes can be sought. Evicting a tenant through the court process consumes a lot of time and resources as most of the Indian laws are pro tenants. Before approaching the court, it is better to make sure that you are in possession of other necessary legal documents of the property including the documents substantiating the ownership of the property, legal heir certificates, power of attorney, etc.
Once the court hears both the parties, the court may make an eviction order for the vacation of the property or rule in favour of the tenant as the situation may be. If you as a property owner are not satisfied with the order of the court, you can file an appeal to a higher court challenging the order of the lower court. Once the court orders in favour of the property owner, the tenant no more will be able to stay at your property.
If the tenant is not responding to the court order and vacating the property, the property owner can file an execution petition. After considering the execution petition, the court may direct the concerned officer or revenue official to initiate departmental proceedings to evict the tenant from the property. Considering the time required (normally one to two years) for settling a civil suit, it is always better to consider the first two steps or other out of court settlements. If the tenant agrees, you can refer the pending civil suit for Lok Adalat (Lok Adalat is an alternative dispute mechanism/forum where the pending suits can be settled without litigation) and settle disputes instantly. If the tenant does not agree to Lok Adalat, you may have to continue contesting the civil case in court.
Thus, it is always better to have a duly signed and stamped Rent Agreement with your tenants. Having a legally valid Rent Agreement will help you to deal with a tenant who does not make timely payment of rents or refuses to make any payment. Before approaching the court, it is always better to send a Late Rent Notice first and if there is no response from the tenant's side you can send an Eviction Notice. In most cases, the tenant either settles the outstanding rent payment or vacates the property after receipt of the notice itself. If that is not the case, you can file a civil suit with the help of a lawyer in the office of the Rent Controller or a civil court where the property is located. Once the court considers the fact of the case, a final eviction notice may be sent to the tenant to vacate the property. Always keep a record of the notices and other communication with your tenants.