Why send notice to vacate premises?

Sending an eviction notice to the tenant by the landlord in India is a formal intimation. A legal notice to the tenant to vacate the premises from the landlord is assumed as an opportunity for the tenant to find a new place. Notice to tenant to vacate is a situation where a tenant is given a reasonable time to leave the rented place and find a new one. In order to vacate the rented property, a legal notice works really well.

In any tenancy, the situation gets worse for a landlord when the tenant is a bully. Such tenants do not want to leave the premises and create an uncalled nuisance for the landlord. India is one such place where such issues are quite prevalent. The tenant forcefully stays in possession, thereby inviting the landlord to exercise the right to file a suit for eviction against the tenant. But before filing a suit, the landlord should first send notice to the tenant to vacate the premises.

“Before filing the case, sending a legal notice to the tenant acts as a final warning. In case the tenant still does not vacate the premises, you should then file the case for eviction of the tenant

Introduction

A tenant eviction notice is basically a legal document in the form of a notice indicating stipulated time in which the tenant should vacate the leased premise it is given by the landlord to the tenant.

What is an eviction?

The period eviction refers back to the civil system via means of which a landlord can also additionally legally cast off a tenant from their condo assets. Eviction can also additionally arise whilst the tenant stops paying lease, whilst the phrases of the condo settlement are breached, or indifferent conditions accredited via way of means of law.

An eviction is the courtroom docket-ordered elimination of a tenant from the assets wherein they reside. A landlord can also additionally determine to evict a tenant for non-charge of lease, damages, unlawful activity, violating the phrases of the hire, or if the owner desires to take ownership of the assets.

What is an eviction notice?

An eviction notice is a letter dispatched with the aid of a landlord to a tenant to tell them that they ought to restore sure trouble or vacate the assets inside a sure variety of days.

In a few instances, the owner can also additionally accept as true that the hassle isn’t fixable and ship what’s called an incurable eviction be aware. In this case, the tenant has no desire however to vacate the assets inside a sure variety of days.

It has been held in the case of Achintya Kumar Saha v. Nanee Printers (2004, SCC 368) that; herein view of the rent control laws and the concept of statutory tenancy evolved in the respect of urban building it is now generally necessary to determine tenancy by a notice to quit before claiming ejectment on grounds admissible under such laws.

If the tenant is uncooperative and does not want to settle the dispute peacefully and does not even agree to vacate the land, the landlord can issue an eviction notice. Not only a tenancy of temporary term but also of fixed-term can be challenged and determined by the eviction notice.

When to send an eviction notice?

Rent not paid: A landlord can evict a person for non-payment or delay of a month or two depending on how long the tenant has been living in the property.
Subletting: A landlord can evict a person when he rented his property for one person and the tenant added two more tenants and started taking rent would be a serious reason for filing an eviction notice.
Damaging the property: If the tenant has seriously damaged the property and is unwilling to pay for the damages, the landlord may evict them.
Self–use: If the owner needs the premises for his purpose or the purpose of his family members.
Commercial use: If the owner needs the premises to run the business using their own property he may send an eviction notice.

Procedure to evict the tenant

In the judgment of the case Narayan v. Kunbhan Mannadiar it was held that the landlord cannot issue the notice of eviction just because he wants to but only if has a valid and legal reason. The reason to ask the tenant to get out from the place must be a justifiable reason and must not be derived from a mere demand for more possessions.

For sending an eviction notice to the tenant there is some essential step followed during the course of sending notice:

Step 1

Firstly, the owner must send an eviction notice before 30 days of filing the suit. A checklist of documents consisting of a serious, valid, legitimate reason for issuing such a notice. The owner will be required to send scanned copies of documents for verification by the lawyer. The notice must be framed in a way that reflects the clear issue and stipulated time that the tenant is legally bound to do so.

Step 2

Secondly, on the refusal of the tenant, the petition will be filed, drafted, and shared after reviewing the same and approved within 7 days. The owner is required to print the draft and sign and send it via courier/post.

It has been held in the case of Munisami Naidu v. C. Ranganathan, AIR 1991 SC 492 the Board was entitled to institute proceedings against the tenant as the notice period had expired. Similar was the case in Vasant Kumar Radhakishan Vora v. The Board of Trustees of the Port of Bombay, AIR 1991 SC 14 where the plaintiff sued the defendant for not conforming to the eviction notice.

Step 3

Thirdly, the case will be filed before the civil court within 3 days as the signed document is being received. Thereafter the lawyer will present the argument before the court and after all hearing and argument evidence presented. Court gives the judgment in favour of any party and the final decision has to be followed by the parties.

Procedure to evict a tenant under the Uniform Residential Landlord-Tenant Act (URLTA), 1872

The landlord can evict a tenant under the Uniform Residential Landlord-Tenant Act (URLTA),1872 through the way of eviction notice as prescribed under the Act. Under Section 12 of the Uniform Residential Landlord-Tenant Act (URLTA),1872 it talks about eviction notice i.e a formal written letter sent by the landlord to the tenant to evict a person by communicating the termination of the Tenancy Agreement.

It was held in the case of Achintya Kumar Saha v. Nanvee Printers it was held that according to the Indian Rental Laws, 1948 the rights of the landlord to evict their tenants are subject to providing the justified reasons for such actions.

What information does the eviction notice include?

An eviction letter must consist of all the specified information of the tenancy agreement, the name of both the parties, the purpose of the notice must be specified and how long the tenant may have to address the issue before any further legal measures are taken.

There are the following details that are covered under the notice:

Addresses of the rental property,
Address of the owner,
The tenant name (the one who pays the lease or everyone who has occupied),
Status of the hire,
Date of hire,
The reason that the notice is being served (the cause for the eviction will country the form of being aware this is being produced),
Date when the landlord signs the notice,
Proof of service.

Conclusion

Renting an apartment, house or property is a common practice in our society and is beneficial simultaneously for both the owner and the tenant. But there are also cases where the landlord gets tired of the tenant as he does not pay the rent or sorts to some unlawful or hazardous activities at the premises and hence the owner asks the tenant to leave the premises and restore his property back.

Dispute between landlord and tenant can be settled peacefully but in some cases, if the tenant refuses to do so the landlord has to file an eviction notice for the further process.

Tenants are hoping to invoke the doctrine of force majeure as legal protection against the non-fulfilment of their contractual obligations. Even large corporations like PVR and Reliance Retail have been forced to invoke this maxim. Statutory bodies like the RERA in many states have had to take note of the pandemic as a force majeure.

What is force majeure?

Though the Indian Contract Act does not refer to “force majeure” as such. The term is used as a convenient label to refer to a foreseeable stipulated circumstance or a supervening superior force that prevents someone from fulfilling their part of the contract.

The occurrence of a ‘force majeure’ would trigger the consequences stipulated in the contract. A typical force majeure clause would first define the events that would constitute a ‘force majeure’ and would then specify what consequences would follow if such an event occurred. The phrasing of the clause will decide whether a specific event falls within the force majeure clause and what consequences must follow. Force majeure is not a magic wand upon the waiving of which all contractual obligations, such as payment of rent, are terminated.

The ‘sanctity of a contract’ is the first and golden rule of contract law. Contracts must be honoured and performed, and there is no easy way to wriggle out of them. They are governed by the Contract Act and have the sanction of law which binds parties to faithfully perform their obligations.

tenancy agreements and COVID-19 Lockdown: A ‘Majeure’ Headache

Tenants are hoping to invoke the doctrine of force majeure as legal protection, but the route may not be simple.

May 28, 2020 | P.V. Kapur

An empty shopping mall in Ahmedabad, March 16, 2020. Photo: REUTERS/Amit Dave/File Photo

When Prime Minister Narendra Modi appeared on our televisions and screens on March 24, he was announcing the beginning of a nationwide lockdown. To contain the spread of the coronavirus, the entire population was asked to stay indoors. People have not been able to go to work, many have lost their jobs, corporations have imposed salary cuts, incomes of self-employed people have taken a major hit. This is certainly not a good time to indulge.

The lockdown has sent shockwaves across the economy. The ability of people to spend money is no longer what it used to be. This has also had a significant effect on landlord-tenant relations. While the tenants’ ability to pay rent has been adversely affected, the economics of the landlords has also been disturbed. Tenants are seeking a waiver of rent as they have been unable to access their premises or because their incomes have been impacted.

What is force majeure?

t India Mall in Noida has been shut indefinitely in Noida as business suffers. Photo: Shome Basu/The Wire

Implied or explicit

According to Indian law, a force majeure clause is not ordinarily an implied term of a contract. A court would not normally read such a clause into a contract. Besides, the threshold of proving an implied term is very high, especially for a fundamental term which will have the effect of releasing a party from performing its obligations. Ideally, it ought to be expressly stipulated.

If the contract does stipulate a Force Majeure it has to be strictly and narrowly construed. Even the court cannot rewrite that clause or read into it what is not expressly stipulated. Nothing can be added or taken away.

Also Read: Will ‘Act of God’ Clauses in India Inc’s Contracts Help Restart the Economy?

The mere occurrence of a force majeure event is not by itself a reason to be excused from performance. Even if governments declare the coronavirus outbreak as a ‘force majeure’, it would only serve as evidence that a force majeure event has occurred. It would not alone be sufficient to excuse tenants from the rent due. Moreover, only those consequences which are stipulated in the force majeure clause would flow. Therefore, the language of the clause will dictate when the clause kicks in, and whether a party is exempted from performing its obligations. If the clause states that the event ought to be such that it “causes failure of the lessee to perform its obligations” or that it “prevents a party from fulfilling its obligations”, one must determine not only the nature of the obligation that the tenant claims it is failing or prevented from performing, but also whether such ‘failure’ or prevention is directly caused by the force majeure event.

In such a clause if the lessee desires to be excused from discharging its liability it must not only demonstrate that the force majeure was beyond its control but also prove that the event itself has caused the lessee to fail to perform its responsibility. The fact that if the tenant was compelled to perform its obligation, it would cause economic hardship or inconvenience, is not sufficient to take refuge under the force majeure clause. If there is an alternative way to overcome the effect of the force majeure event, the tenant would not be excused from payment of rent. If the tenant has funds available then its obligation to pay rent is not impacted. The tenant cannot rely on the force majeure clause, without trying to mitigate or explore alternative ways of performing the contract.

Anticipation is also a key. Relying on ‘Act of God’ as a force majeure event, in the words of our Supreme Court “does not operate as an excuse from liability, if there is reasonable possibility of anticipating their happening”. In the recent past the world was inflicted with epidemics like SARS and H1N1. Eminent personalities like Bill Gates, former US President Barack Obama, are only a few examples of people who cautioned the world on the need to be prepared for a deadly pandemic. As to whether COVID-19 and the resultant lockdown were ‘anticipated events’ and therefore ‘force majeure events’, would require some debate. Though tenancy agreements entered into prior to the SARS and H1N1 pandemics, may qualify as a force majeure event since a pandemic such as COVID-19 was not an anticipated event yet the consequent ‘lockdown’ may not satisfy that requirement. But this is not to say that on the happening of the pandemic or the lockdown the tenant would be automatically entitled to suspend payment of rent. The tenant will be entitled to claim only that relief which is stipulated in the agreement.

Unless the force majeure clause expressly stipulates, even the inability to ‘use’ the premises does not solely satisfy its requirements. ‘Use’ does not only mean the ability to come and go from the premises. It also includes its utilisation to house equipment, servers, furniture, security personnel etc.

Some of these views have been echoed by the Delhi high court in a judgment delivered on May 21. Noting various decisions of the Supreme Court, the learned judge considered the following factors:

Nature of the property
Financial and social status of the parties
The amount of rent the property commands in the market
Any contractual condition that permits non-payment or suspension of rent;
Protection under the Government’s executive orders

The court, having taken these into account, denied relief to a tenant who was seeking suspension of rent due to COVID-19 and the resulting lockdown.

Most force majeure clauses provide for a notice period. In those cases, a tenant must issue a timely intimation to the landlord of his intention to invoke the clause. If the tenant omits to issue a timely notice but does so later on, he would be entitled to waiver of rent only for the period after the date of the notice.

Court of India in New Delhi. Photo: PTI

Frustration of contract

There is a popular notion that in the absence of a force majeure clause, the occurrence of COVID-19 can be cited as an event that has made performance of obligations under the lease agreement impossible or impracticable; and therefore the contract stands ‘frustrated’ within the meaning of Section 56 of the Contract Act.

Section 56 of the Contract Act has no application to leases:

The essential ingredients of the second part of Section 56 are that:

There should be a valid and subsisting contract;
There must be some part of the contract yet to be performed; and
The contract, after it has been entered into, becomes impossible to performed.

There is no doubt that the doctrine of frustration applies to contracts. A lease, however, is more than a mere contract as it results in the creation of an estate, or an interest in favour of the lessee. Once the lessee has been put in possession of the premise there is nothing more to be performed and thus condition (2) would not be satisfied. Section 56 i.e. doctrine of frustration has no application in cases of completed transfer unless there is an express provision to the contrary in the contract itself or in local usage.

As made clear by the Delhi high court in Airport Authority of India vs Hotel Leela Venture Limited, the events which discharge a contract cannot invalidate a concluded transfer. The said judgment also clarifies that Section 108 (e) of the Transfer of Property Act, which defines, inter alia, the obligations of a lessee, is a special law and would supersede the doctrine of frustration, as the latter is a part of general law

Living on rent without a rent agreement. Is it legal?

Yes, it is legal to stay on a property on rent without actually drafting a written rental agreement.

In the absence of a rent agreement, the implied consent/contract is assumed if the owner is collecting the rent every month.

Even though it is recommended to have a rent agreement to safeguard both parties' interests, the Indian law permits a tenant and a landlord to have a prosperous relationship without a written agreement.

So, the non-existence of a rental agreement does not affect the legal rights of the tenant or the landlord as both are encapsulated under the common law.

Typically, if you aren't contracted via a rent agreement, it is accepted as an oral lease.

An oral lease though does not offer much room for restrictions and guidelines, it provides flexibility to both tenants and landlords.

Live law Civil

Monday, 10 January 2022

notice to vacate premises