Notice of Eviction

Tenancy

According to the 2011 census, there are a total of 27.37 million rented households in India with 11 million vacant and 0.8 million unsold homes which has the capability to generate a $20 billion residential rental market according to Forbes[1] . This prompts us to turn our attention to the tenancy laws in the country.

When pondering over tenancy and its facets, the eviction of the tenants in the rented property poses itself as well .In the unfortunate event that you are required  to evict a tenant, knowledge of its procedures take one a long way especially keeping in mind the pro-tenant laws in the country. The following write up address the first step to the eviction process in the country i.e. the “Notice of Eviction”

Notice

The primary step to every legal action is to make the other party aware of the legal proceedings about to be insinuated against him. This aids in informing the party with regard to the proceedings about to ensue and its consequences, this is done via furnishment of notices. The objective of the service of the notice is to purvey information about the requirements of the landlord to the tenant so as to enable him to search for an alternative accommodation or to fulfil the requirements of the landlord as mentioned in the notice.

A notice can be defined as “information concerning a fact, actually communicated to a person by an authorised person, or actually derived by him from a proper person  source, and is regarded in law as “actual” when the person sought to be affected by it, knows thereby of the existence of the particular fact in question.[2] It can further be elucidated to be “information concerning a fact actually communicated to a party by an authorised person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent to knowledge in its legal consequences.[3]

Serving the Notice: Types and Provisions

The notices served can be with or without cause, both notices should be served either in person on the tenant or on a family member, helper or employee of the tenant, it can also be served by post, or by affixing it to a noticeable part of the property, if personal service is not possible (Refer Section 106 of the Transfer of Property Act).

If the tenant does not adhere to the lease or the notice then the landlord should initiate legal proceedings against him/her in the court and file a rent control original petition (hereinafter known as RCOP) in the proper Small Causes Court and secure the legal notice and rental agreement as evidences in the same.

An eviction notice without cause is served in cases when the tenant hasn’t violated the lease or done anything to warrant an eviction like in the case, a tenant’s month-to-month lease has ended. In the cases of furnishment of notice without mention of the grounds of eviction/without cause in the notice is immaterial if the claim for eviction founded on such ground in the petition for eviction is proved to be well-founded and the same is consistent with the grounds on which eviction is permissible in law. A direct complaint can be filed by the landlord if the rented place is used for illegal activities.

Communication of the Notice

Before serving the tenant with a notice of eviction, the landlord may provide the tenants with warning notices titled “Notice to Quit”, or “Notice of Lease Violation” or in cases of non-payment of rent, with demand notices directing the tenants to pay the rent in the stipulated time. The notice would be considered as served even if the tenant in question leaves his place of residence to avoid the reception of the notice[4].

As was held in Munnalal Aggarwal v. Jagdish Narain[5]the that notice should be tendered, offered or handed over to the tenant within three months from the date of commencement of the Act and in case the service of notice is after three months of the commencement of the Act, the landlord is not entitled to take benefit of such notice. A notice received by a member of the staff at the office of the firm has been held to be a proper service.

Reasons for Eviction

  1. Use of rented premises for unlawful purposes.
  2. Subletting the rented property another person lacking the landlord permission or written request.
  3. Deliberate non-payment of a mutually agreed rent amount for more than 15 days from the due date.
  4. Tenants action leading to loss of property value or its utility.
  5. The tenants contesting the landlords title in the rented property.
  6. Need of landlord to utilize the premises for his/her own use.
  7. Sale of property to another individual.
  8. Violation of lease.

Drafting the Eviction Notice

Keeping the above in perspective, the question of what should a person include in the eviction notice that is to be furnished poses itself. A standard eviction should in addition to the formal tone of its contents include the following:

  1. How did you meet the tenant?
  2. Mention the details of advertisement of house of rent?
  3. Date of entering into rental agreement?
  4. Reason for which you wish to evict the tenant?
  5. When the reasons emerged?
  6. Written notices, furnished priorities to the concerned ones.
  7. Time period provided to him before such eviction?
  8. Repercussions of not adhering to the eviction?

Do nots

Things that must be avoided while evicting a tenant:

  1. A background check should mandatorily be done before renting the property to someone.
  2. The notice furnished should not include colloquial language or sport a coercive tone in its contents.
  3. Relevant provisions relating to the use of property, termination of rent agreement, rent amount, etc must be included in the rent agreement with the same being drafted with the help of a property lawyer.
  4. To provide protection against future eviction hitches and technical predicaments, the rent agreement should be for only 11 months and provide a clause of optional renewal.
  5. Both the parties i.e. the landlord and the tenant ought to check that the grounds of eviction permissible under the State’s rental laws in which the property is situated with the same making it to the lease as well.
  6. The landlord shouldn’t indulge in wrongful eviction measures such as cutting-off basic utilities like electricity or water, alteration locking mechanism of the tenanted property, throwing away tenant’s belongings from the rented property or take penalizing measures by his own. These are criminal offences and the tenant has the right to file charges against the landlord if found guilty of such conduct.
  7. The landlord must not evict a tenant without sending eviction notice

Conclusion

With the process of eviction of tenants being so tedious, painstakingly time consuming and lathered with a host of technicalities which serve as a burden on both the pocket and the mind  of the common individual, it is advised that the individuals involved in the tenancy process, both the leaser and the leasee take effective steps to come to an agreement at the advent of the tenancy itself with robust lease, identification, agreement and understanding of the expectations and prospects of the tenancy so as to avoid the wearisome and messy  process of eviction at the later stages of the same. In the absence of the same, landlords should engage in serving well drafted eviction and warning letters to the tenants so as to convey their requirements and for the notice to act as concrete evidence in the unfortunate event of the inability of the tenants to meet those.


[1]  May 28, 2016,01:59pm EDT,India’s $20 Billion Residential Rental Market And Its Tech Disruptor, Rani Singh ,Asia Current affairs, business, security, international relations, sport

[2]   United States v. Tuteur, C A III, 215 F 2d 415.

[3] By virtue of T.P. Act, se c. 3; Indian Trust Act, se c. 3; 13 All 171; 30 B 275.

[4] Subrata Kumar Dash v. Pradeep Kumar Ram, (2001) 18 OCR 733

[5] Appeal (civil)  3122 of 1995

[6] Sh. Tara Chand vs Sh. Jagjeet Singh , 35/2015

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