Is a relative refusing to vacate your apartment?
Properties let out to relatives are referred to as permissive possession and are governed by the law of licencereal estate Updated: Apr 23, 2016 19:45 IST
Family ties are important. When property owners permit family members and relatives to live in their properties, such permissive possession is governed by the law of licence.
For example, if an owner allows his cousin to stay in his apartment without an agreement or arrangement for lease, it will be considered permissive possession and their relationship will be that of a licensor and licensee. The actual possession will remain with the owner/licensor of property.
When the owner wants his property back and asks the relative (licensee) to vacate the premises, he can send a notice in writing for termination of license. What happens, however, if the licensee fails or refuses to vacate the property? What is the way out for the owner?
The concept of license is defined under the Indian Easements Act, 1882. A license is a personal right granted by one person to another to do something on an immoveable property of the grantor without creating any interest in respect of the possession or title of the property.
In a license, the possession of the property remains with the owner but the licensee is merely permitted to use the premises for a particular purpose. No interest in the property is created in favour of the licensee and he or she can use the property only in a way permitted by the licensor.
Thus, where the person has restricted or limited right to use the property while it remains in possession and control of the owner, such a transaction is called a license.
Secondly, termination of license is necessary to get the licencee to vacate the property for which a notice has to be issued to the person concerned. Should he not vacate, the licensor can file a suit of injunction before the court seeking relief from the court to direct the licensee to vacate the premises.
However, it must be noted that the licensor must act promptly in such a situation. On verifying the facts and circumstances, the court can pass an injunction order and direct the licensee to vacate the premises.
In a suit for injunction, ie for directing the licensee to vacate the premises, a licensor has to pay a minimal amount as court fee. In a suit for recovery of possession, court fee is payable on the market value of property. Where a licensor acts promptly, a suit for injunction to remove the licensee from the premises is entertained by the court. Delay in doing so could result in the court not entertaining a suit for injunction. Subsequently, the licensor would have to file a suit for recovery of possession on which the licensee has to pay a higher court fee.
Another right that the licensor has against the licensee for illegally occupying the property is that of mesne profit. Mesne profits refer to the gains that an illegal possessor may have derived by using such a property despite termination of license. This may be granted by the court of law only if it has been claimed for by the licensor. Therefore, if one is claiming possession of property in the appropriate court of law, one must ask for mesne profits along with possession of the property.
The author is a senior partner at Zeus Law, a corporate commercial law firm. One of its areas of specialisations is real estate transactional and litigation work. If you have any queries, email us at firstname.lastname@example.org and email@example.com.