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 li­cence

HT Estates - - HTESTATES - Su­nil Tyagi

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?

T he c once pt of l i c e nse 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, ter mi­na­tion 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 li­cen- sor 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 t hat t he l i cen­sor 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.

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