Eviction of old tenant without lease documents
Querist :
Anonymous
(Querist) 29 September 2010
This query is : Resolved
Some tenants have been living in my property for 13 years. Actually, they are family members of the original tenant who is now dead. I lost my sale deed and lease agreement but I have a certified copy of the deed from sub registrar showing that I am the owner. I have no copy of the lease and I do not know if the occupants have a copy.
My advocate says it is not possible to evict these people because I do not have any lease to prove they are tenants. He says although the original lease probably expired long time back, the occupants are still in the status of tenants but this can only be proved by the lease.
He also told me that I cannot file suit for trespassing because if they produce the lease they will be classed as tenants and tenants cannot be trespassers, so the case will fail.
So basically, he says any suit will fail without the lease document. Is this true?
What if I sue for trespassing and they produce a lease and the case collapses? Can I file a second suit for eviction because then the lease will be on record from the first suit, thereby proving they are tenants?
Basically, the problem is that I know that they are tenants in default but I cannot prove this fact without the lease. They may or may not have a copy but I don't know how to find out and more so how to get a copy if they have one. They have the power to prove or hide their status to their advantage, depending on what suit I file.
Looking for advice from all you friends in this matter.
Shanti
Devajyoti Barman
(Expert) 29 September 2010
No, you could prove the tenancy by way of rent receipt if any or by oral evidence. The tenancy does not depend upon the rent agreement only. Consult a good local advocate.
Querist :
Anonymous
(Querist) 30 September 2010
Thanks to Mr Barman.
Unfortunately, there are no rent receipts because last rent was paid many years ago and all such documents are lost along with the original lease.
And how to obtain oral evidence? The occupants have implicitly admitted that they are tenants when I spoke to them but our relationship has subsequently become quite hostile so conversing with them is out of the question.
They might have a copy of the lease but I don't know how to obtain it from them. I don't think they are willing to share any documents.
My advocate is a senior partner is a prestigious law firm and commands a high fee. But in spite of this he is refusing to take the case unless a copy of the lease is obtained by me.
As the owner I feel that burden of proof should not be on me to prove that the occupant is a tenant.
Advocate. Arunagiri
(Expert) 30 September 2010
You please file a eviction petition for the non payment of rent. You just send a legal notice to the tenant demanding rent. Once he failed to pay the rent, you can file a eviction petition under the Rent Control Act. You need not produce any document to prove that there the tenants.
You can also file a eviction petition stating that the suit property is needed for your personal need.
You cannot treat them as a tress passers. Because they are the legal heirs of the tenants to whom you/your elders would have give the lease.
If you are the owner of the property, you have every right to evict the tenants through legal process.
If you want more please send the exact details to my email ID veluarun@yahoo.com
I can help you to file a case through my associates.
R.Ranganathan
(Expert) 30 September 2010
Yes, I agree with Arunagiri. Why you are wasting your time thinking of all impossible things. You just send notice for payment of rents and then when they don't pay the same file eviction petition or else file an eviction petition stating that you need it for your personal use, if you can prove that it is really needed for your personal use. Best solution is to file eviction for non payment of rents. In that petition itself you will get the status of your tenant whether he is having a lease deed or not and the details of the lease deed.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 30 September 2010
A tenant is a tenant and you can throw him out only through legal procedure which is always against the landlord worldover.
You have to prove default in rent and not issuing rent reciepts you have no evidence.
Querist :
Anonymous
(Querist) 30 September 2010
Different opinions are confusing. Now I don't know who to believe and my advocate is also useless.
Thank you all anyway. I will have to find a solution myself.
Shanti
R.Ramachandran
(Expert) 30 September 2010
Dear Shanti,
If a fellow intakes lot of tobacco and lands up in severe cancer and approaches the doctor at the fag end, and the doctor tries to find solution to the best of his ability, the patient cannot say the Doctor is useless.
Similar is your case - where you do not have the lease deed, nor any rent receipt granted by you. The advice you have received in the forum is for and against. If your lawyer takes a particular line, how the other side can counter it has also been indicated.
Having placed yourself in a situation where you are, you have definitely to take action - better follow the advice of Mr. Arunagiri and Mr. Ranganathan.
H. S. Thukral
(Expert) 30 September 2010
Your confusion from the replies is well founded and understood. This has been a topic of discussions in the forum where members shoot out their opinions when they themselves are not fully /adequately acquainted with the law/topic. Most of the experts just pour in to say 'I agree'.
Your problem in immediate is that you have to prove landlord/ tenant relationship. You say you can prove your title. Issue a legal notice demanding arrears of rent for the last three years only. You wait for their reply. The notice being a statutory requirement they are bound to reply it either way. They will either deny the relationship of Landlord/ tenant or shall claim title in themselves claiming adverse possession. It will then be much easier to suggest you the next step once you receive the reply to the notice.
I appreciate your comments that you will find your own solution. A litigant always end up saying same thing in most cases but your comments must be seriously taken by the Administration so that the mission/purpose of site is not diluted due to flood of EXPERTS ON THE PANEL.
Querist :
Anonymous
(Querist) 30 September 2010
Dear Mr Thukral
Thank you for your reply. I also thank the other members and I know that most are genuinely trying to help (apart from the ones who say "I agree" to boost their ratings). As a lay person, I turn to legal professionals on the assumption that experts will provide non-contradictory advice because surely the law is not so vague as to allow severe divergence among advocates. But as I said, my own advocate has told me that there is no remedy without the lease but I do not want to give up so easily.
As Mr Thukral correctly notes, the crux of the matter is that although I can prove my title, I cannot prove the landlord/tenant relationship.
I will suggest to my advocate that he issues legal notice demanding arrears of rent. However, one of his objections in proceeding with legal action is that there is no "quantum" of rent. Last rent was charged by, and paid to, my father (I am tenant by inheritance) 12 or 13 years ago; the last known lease was lost after his death and I don't know the rental rate stipulated therein. When issuing notice for 3 years' unpaid rent, is it necessary to quote an amount? If so, what would this amount be based on if not the amount stipulated in the last known lease?
I thank the experts again and await guidance on the actual content of the notice for payment of rent in arrears, since without the lease I cannot stipulate the amount of arrears or cite a previous lease agreement (for example, I could not say "as per our lease agreement dated xyz for Rs xyz per month" because I do not have these details). Will a notice without these particulars still be legally valid? Or will the court demand the lease and particulars contained therein?
Thank you.
H. S. Thukral
(Expert) 30 September 2010
You have to claim a definite amount of rent. I will suggest you go for the quantum which is just on the lower side of other similar rented properties. The defendants have to come with counter allegations of rent payable. The burden is of course on landlord to prove the quantum of rent. You can create evidence when the issue in this regard is framed by the court. Your first problem of proving the relationship would not be there.
Querist :
Anonymous
(Querist) 30 September 2010
Thank you Mr Thukral.
I will suggest using an approximate rent quantum as you recommended, so let's see what my advocate says.
Also, it seems that the state electricity board requires proof of occupancy (lease if tenant, sale deed if owner) before granting a new connection or changing the customer name. Presumably, most service providers (electric, gas, cable TV, phone, mobile etc.) require such proof of right to occupancy at the address before granting residential connections. These service providers may have a copy of the lease but is there any law that can be used to request or compel them, as the owner with title, to provide me with a copy of the lease, or any other documents, on the basis of which they granted the tenant a connection? The water connection is still in my father's name but the electric connection is in some other name not known to me. At least for public sector service providers like electricity, I am hoping that it is possible to request copies of such documents, but private companies may not be willing to disclose their records.
I await your thoughts as always.
H. S. Thukral
(Expert) 30 September 2010
Do not bother about the lease deed. If the tenants make a case that the rent has been mentioned wrongly, you can always talk of enhancement of rent during post lease period. Mentioning of wrong rent would not lead to dismissal of your case.
