If you are stuck in such a situation, here is what to do.

Mr. Alok Sharma is the registered owner of a residential property in the city of Rampur. As he and his immediate family reside in a different city, this property was vacant. Out of familial goodwill, Mr. Sharma allowed his brother, Mr. Brijesh Sharma, to live in the Rampur house with his family, as Mr. Brijesh did not have a place of his own. This arrangement was entirely informal; there was no rent agreement, lease, or any written contract. Mr. Sharma never made any promise to transfer the ownership to his brother. The family’s concern now is to legally secure the property and ensure that Mr. Brijesh cannot claim any ownership rights over the house in the future, based on his long-term residence.

Advice in such cases

The primary risk in such informal arrangements is a future claim of ‘adverse possession’. To safeguard the owner’s rights, it is crucial to clearly define the nature of the occupant’s stay as ‘permissive possession’.

• Create a Leave and License Agreement: This is the most effective step. A Leave and License Agreement is a legal document that grants the licensee (in this case, the uncle) permission to use the property for a specified period. It explicitly states that no ownership rights are being transferred. This document serves as clear evidence that the possession is permissive, not hostile.
• Specify Terms Clearly: The agreement should be for a fixed term (e.g., 11 months) and can be renewed. It should clarify that the stay is purely based on the owner’s permission, which can be revoked. A nominal license fee can be mentioned to further solidify the arrangement.
• Keep Records: Ensure all property tax receipts, utility bills, and other official documents remain in the owner’s name (Mr. Alok Sharma). This continuously reinforces legal ownership.
• Communicate in Writing: If creating a formal agreement seems difficult due to family dynamics, at least have some form of written communication (like an email or a letter) acknowledging that the stay is temporary and with the owner’s permission.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

This situation is governed primarily by civil laws related to property and contracts.

• The Limitation Act, 1963: Article 65 of this Act deals with adverse possession. It states that a person can claim ownership of a property if they have been in continuous, uninterrupted, and hostile possession for 12 years, to the knowledge of the true owner. By creating a license agreement, the possession remains ‘permissive’, and the 12-year clock for adverse possession never starts.
• The Indian Easements Act, 1882: Sections 52 to 64 deal with ‘License’. A license is a personal right granted to a person to do something upon the immovable property of the grantor, which would, in the absence of such a right, be unlawful. It does not create an interest in the property itself.

If you are the complainant

If you are the property owner wanting to secure your rights, you are essentially the potential complainant in any future dispute. Your actions should be proactive.

• Gather Your Documents: Collect all original documents proving your ownership, such as the sale deed, property tax receipts, and mutation records.
• Initiate a Dialogue: Approach your relative and explain the need to formalize the arrangement for legal clarity and to protect everyone’s interests. Frame it as a necessary formality.
• Draft an Agreement: Get a lawyer to draft a clear and simple Leave and License Agreement. Present it to your relative for their signature. Their willingness or refusal to sign can be very telling.
• Register the Agreement: While an 11-month agreement does not mandatorily require registration, registering it provides stronger legal validity.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

As the property owner, you are the potential victim of a future fraudulent claim. Immediate action is required to mitigate this risk.

• Secure Originals: Ensure all original title deeds and property documents are in your safe and exclusive possession.
• Assert Ownership: Continue to pay all property taxes and utility bills from your own bank account and ensure the receipts are issued in your name. Periodically visit the property to assert your right as the owner.
• Formalize the Stay: The most crucial step is to change the nature of the possession from an undefined informal arrangement to a legally defined ‘permissive’ one. This must be done through a written agreement.
• Do Not Accept Cash: Avoid accepting any random cash payments from the relative, as they could later be misrepresented as rent or part-payment for a sale, creating unnecessary complications. Any financial transaction must be documented under a proper agreement.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

It is important to understand that this is a civil matter, not a criminal one. The police have a very limited role. They will not intervene to evict a person in such a situation, as it is not a case of criminal trespass initially. The possession began with the owner’s consent. Police will only get involved if there is a complaint of a specific criminal act, such as violence, threats, or a breach of the peace. They will invariably advise both parties to approach the civil court to resolve the property dispute.

FAQs people normally have

• Can my uncle claim ownership just by living there for over 12 years?
  No, simply living there is not enough. For a successful adverse possession claim, his possession must be hostile, open, and continuous, without the owner’s permission. Since he is living there with the owner’s permission, his possession is not hostile, and he cannot claim adverse possession. However, without proof (like an agreement), this can become a matter of ‘he said, she said’ in court.
• What if my uncle refuses to sign an agreement?
  This is a major red flag and indicates a potential intention to claim rights in the future. In such a case, you should consult a lawyer immediately to send him a legal notice to vacate the property, thereby formally revoking the permission to stay.
• Is a verbal agreement not enough?
  Verbal agreements are legally weak and very difficult to prove in court. A written document, like a Leave and License Agreement, provides clear, undeniable evidence of the terms of the arrangement and is essential for protecting your rights.

What evidence is required?

To defend your ownership and prove the possession is permissive, you will need:

• The original registered Sale Deed or Title Deed in your name.
• Recent property tax receipts paid by you.
• Utility bills (electricity, water) in your name.
• A copy of the signed Leave and License Agreement.
• Any written communication (emails, letters) with the relative that acknowledges the permissive nature of their stay.
• Bank statements showing you have been paying for the property’s upkeep and taxes.

How long will the investigation take?

There is no police investigation in such civil matters. If a dispute arises and you need to evict the relative, you would have to file a suit for eviction in a civil court. The duration of such a lawsuit can be lengthy, often taking several years to conclude, depending on the court’s caseload and the complexities of the case. This is why proactive, preventative measures like creating a proper legal agreement are far more efficient and cost-effective.

Advocate Sudhir Rao, Supreme Court of India