What to do if tenant isn't paying rent

In this blog post, Pravesh Naveriya from RDVV, Jabalpur, talks about your options if your tenant is not paying you any rent or is vacating your house.

There are a large number of people who are living in rented houses in India. It is quite obvious that when such a large population will live for rent, there are a number of problems and issues which are to be dealt with regarding rents, rented houses and properties.

Among the many problems which a landlord faces while renting his house, the biggest and the most frequent problem is when the tenant refuses to pay or is always late in paying the rent. Another problem with the rented houses is that when the tenant neither pays the rent nor is vacating the house so that the house can be rented to a new tenant.

Is It An Offence

Living or even extending your entry into someone else’s property without or against his consent is an offence. The offence which deals with the excess of time spent in a particular place where you should not be or when you have no right over it is covered under trespass. It is a type of trespass in which a person who had a limited authority or consent to be in a particular place, extends his presence after the time till which he was given the authority to be there, commits an offence of trespass.

Trespass has been explained in the law of torts and under the Indian Penal Code. Under torts, it is wrong but the punishment of trespass has been explained in the Indian Penal Code.

Trespass

Trespass is an offence which is defined in both the Indian Penal Code as well as in the law of torts.

  • Trespass in legal terms is the physical interference of an unauthorized person into either a land or chattel or body of the aggrieved person.
  • Trespass in simple words can be explained as, disturbing a person or even entering into a person’s property or being in a particular place for more time than what he was given consent for, by any person, without or against his or her consent.
  • This is a problem which is usually faced by the landlords when their tenants refuse to vacate their house.
  • This problem which is faced by the landlords of their tenants not vacating the house is covered under trespass.
  • Trespass are of three types – trespass of person, trespass of chattel and trespass of land or property.
  • Trespass of person is an act in which a person without any authority or the consent of the aggrieved person, disturbs or intervenes or interrupts the person from doing what he was doing before he was interrupted.Trespass of person has been explained in the law of torts.
  • Trespass of chattel is an act in which a person without any authority or the consent of the aggrieved person, disturbs or intervenes with the privately owned movable property of the person. Trespass of chattel has been explained in the law of torts.
  • Trespass of property or land is an act in which a person without any authority or the consent of the aggrieved person, disturbs or intervenes with the property or land of a person. Trespass of land has been explained in the law of torts as well as in the Indian Penal Code. It is a punishable offence.

There are certain components which are essential for any interference to become trespass. The basic components which are essential for trespass of property are:

  • Entry into someone else’s property. The first component for trespass is entering into the property of someone else. Merely a statement or declaration that he will enter into the property shall not constitute trespass. For a case of trespass to be registered a physical trespass has to happen.
  • Taking the entry without consent or against his consent. If any person takes an entry into a property where he has not been allowed to enter, specifically or generally, then he is said to commit trespass.
  • Entry by an unauthorized person. If any person who was not authorised to take an entry into the property, makes an entry into the land possessed by someone else, then he shall be liable for trespass. If any person who either has been authorised by that person or by the law enters into the property in the due course when he has been authorised shall not be liable for trespass. For example, if a Police Officer or a CBI Officer or an Income Tax Officer enters a property to perform a certain act which he has been assigned, shall not be held liable for trespass.
  • Not leaving the property even after the time till when you were given the consent. If any person doesn’t leaves the property even after the time till when he was given the consent to be shall also commit trespass.

Criminal Trespass

  • Trespass of property of a person without his consent, by another person without authority, has been defined as criminal trespass under Section 441 of the Indian Penal Code, 1860.
  • As per the Section, if any unauthorized person enters upon the property of another person, without his consent then he shall be punished for criminal trespass.
  • The punishment of criminal trespass has been defined in Section 447 of the Indian Penal Code.
  • If the tenant refuses to leave your property even after he has been asked to vacate shall be punished under criminal trespass.
  • The punishment for criminal trespass is imprisonment which may extend to 3 months or fine which may extend to 500 rupees or both.
  • Cognizable
  • Bailable
  • Compoundable
  • Finable up to 500 rupees
  • Imprisonment which may extend to 3 months

House Trespass

  • Criminal trespass upon the backyard or any other part of the property which is in someone else’s possession is called house trespass.
  • House trespass is a more precise term as compared to criminal trespass.
  • Criminal trespass is intervention upon any property which is not under your possession whereas house trespass is the criminal trespass of someone’s house or any portion of his house.
  • Every house trespass is criminal trespass but every criminal trespass is not house trespass.
  • House trespass has been defined in Section 442 of the Indian Penal Code and the punishment for house trespass has been defined in Section 448 of the code.
  • The punishment for house trespass is imprisonment for a term which may extend to one year or fine which may extend to 1000 rupees or both.
  • Cognizable
  • Bailable
  • Compoundable
  • Finable up to 1000 rupees
  • Imprisonment which may extend to 1 year

Suggested Reading: Everything You Need to Know About Trespassing

Remedies Available

The first move you should make if anyone trespasses upon your property is try to stop him from doing it. The law gives each and person a power and a right to protect your property by using appropriate measures.

  • Sections 103 and 104 of the Indian Penal Code allows a person to cause grievous hurt or even kill a person in order to protect your property.
  • But these powers shall only be used when it becomes necessary to use it.
  • If even a person causes grievous hurt or kills a person while protecting his property and he has used it in a situation under which he was justified to do it, he shall not be punished for killing or for causing grievous hurt to that person as he has not committed any offence because what he did will be covered under private defence.
  • The remedies which are available to you if anyone trespasses upon your property are to approach the Rent Control Board and ask it to interfere in the matter and you can also claim for the damages which you have suffered due to that trespass.

Rent Control Acts

The Rent Control Acts in India are regulated by the State Governments. The 29 different states of the country have different rent control rules to deal with the problems of tenants and landlords. The Act was passed with the intention to protect the rights of a tenant in particular, but there are certain provisions in the act which gives the landlord certain rights over his property.

There are different Acts operating in the different states of the country in which there are different provisions related to the rights and duties of the landlords. There are certain provisions which are almost the same in all the Acts. The rights which are available to a landlord in all the acts to vacate his house are:

  • A landlord may recover possession of his house when the tenant has violated any of the points mentioned in the agreement. The issues upon which a landlord has a power to vacate his house are the ones mentioned in sub-clause (o) of section 108 of the Transfer of Property Act, 1882, which includes the colour of the tiles, walls etc.
  • He may ask the tenant to vacate his house if he has erected or has done any construction on the rented house without his consent.
  • If the tenant or any other person who is said to be under his guidance or someone who is residing with him has committed any act which amounts to nuisance or has annoyed the neighbors.
  • If the tenant has given a notice that he shall vacate the house and responding to the notice the landlord has found a new tenant, but then he refuses to vacate.
  • If the premises is bonafidely and reasonably required by the landlord.

So if a tenant is neither giving the rent nor is vacating the house, the landlord may approach the Rent Control Board and request the Board to interfere the matter, and if the Board is satisfied that the contentions of the landlord are correct and there has been a violation of any of the rights of his, then the Board shall direct the tenant to vacate the house.

Damages

Damages are means through which a person is supposed to get approximately what he has lost. There are certain injuries for which no damage or compensation can give what is lost. There are certain injuries for which an amount of money can compensate the loss. One of those acts is trespass.

  • If someone trespasses upon the property owned by you then you may approach the court and ask for the damages which you have suffered.
  • Damages, in other words, is the compensation which the court asks the defendant to give to the plaintiff for the loss which he has suffered.
  • If the tenant is neither giving the rent nor is vacating the house, then he is liable to compensate you in the form of damages.
  • The amount of damage depends upon the loss which you have suffered.
  • Damages are given for both physical as well as mental losses suffered.
  • The amount of physical loss is usually calculated by calculating the present value of the land upon which you have suffered the loss.
  • Calculating a mental loss is a more complex matter, for this, the court has to go through the case thoroughly and see that the loss is of what impact and then decide an amount to be paid as damages.

Conclusion

If a tenant has neither given the rent for a long nor is vacating the house, then the landlord can approach a civil court for damages for the loss which he has suffered due to the problem, both physical as well as mental. The landlord can also approach the Rent Control Board, through an application requesting the Board to decide the matter and direct the tenant to either give the complete rent or vacate the house.

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