All about ten­ancy at suf­fer­ance

If a ten­ant con­tin­ues to oc­cupy a prop­erty even af­ter ex­piry of the lease with­out the con­sent of the land­lord, it is re­ferred to as ten­ancy at suf­fer­ance. Un­der the law there is no dif­fer­ence be­tween such a ten­ant and a tres­passer

HT Estates - - HTESTATES - Su­nil Tyagi

Leas­ing com­mer­cial or res­i­den­tial prop­erty is an at­trac­tive source of in­come for many land­lords ( lessor). Ten­ants (lessee) on lease get the rights to en­joy such an im­move­able prop­erty for a spec­i­fied time and are re­quired to pay monthly/ quar­terly/an­nual lease. Both par­ties ex­e­cute a lease deed which records the terms and con­di­tions of the lease, in­clud­ing but not lim­ited to cap­tur­ing specifics such as the term, method of re­newal and grounds of ter­mi­na­tion of lease.

At the end of the lease term, it is the duty of the lessee to va­cate the prop­erty and hand over the pos­ses­sion of the premises to the owner. How­ever, there have been in­stances of lessees re­fus­ing to va­cate the house even af­ter ex­piry of lease.

It is im­por­tant to dis­tin­guish be­tween a ten­ant who con­tin­ues to use the prop­erty af­ter ex­piry of the lease term and a lessee who re­tains pos­ses­sion with the con­sent of the land­lord.

In case a ten­ant is wrong­fully stay­ing in the house even af­ter ter­mi­na­tion of the term or ex­piry of the lease with­out the con­sent of the land­lord, it is a case of ten­ancy at suf­fer­ance and ac­cord­ing to the courts there is lit­tle dif­fer­ence be­tween such a ten­ant and a tres­passer. To cite an ex­am­ple, Ashok had given a por­tion of his house to Rahul on lease and ex­e­cuted a reg­is­tered lease deed for the same. Ashok died a few days fol­low­ing the ex­piry of the term of the lease but Rahul con­tin­ued to be in pos­ses­sion of the leased premises. Ashok’s le­gal heirs want the prop­erty back but Rahul wants to con­tinue with the lease and does not want to hand over pos­ses­sion to Ashok’s heirs al­though the time pe­riod of the lease is over.

In such a case, the pos­ses­sion of the leased premises by Rahul is nei­ther le­gal nor law­ful in the eyes of law. A suit of wrong­ful pos­ses­sion can be in­sti­tuted against him by Ashok’s heirs and Rahul be­ing a ten­ant at suf­fer­ance is li­able for ‘eject­ment’ or evic­tion un­der the law.

On the other hand, ten­ancy by ‘hold­ing over’ is ap­pli­ca­ble where the ten­ant re­tains the pos­ses­sion of the premises be­yond the orig­i­nal lease term with the assent of the land­lord. For ex­am­ple, Me­hta leases out a por­tion of his prop­erty to Radha and ex­e­cutes a reg­is­tered lease deed for the same. The term of the lease gets over but Radha con­tin­ues to be in pos­ses­sion of the prop­erty and con­tin­ues to pay rent to Me­hta ev­ery month.

It is prima fa­cie ev­i­dent that Me­hta has as­sented to Radha con­tin­u­ing to rent out his prop­erty as per the terms of the orig­i­nal lease.

An es­sen­tial pre­req­ui­site for the ten­ancy by ‘ hold­ing over’ is a bi­lat­eral agree­ment be­tween the lessor and lessee. The act of hold­ing over af­ter the ex­piry of the term does not cre­ate a ten­ancy of any kind. A new ten­ancy is cre­ated only when the land­lord as­sents to the con­tin­u­ance of the ten­ant or the land­lord agrees to ac­cept rent for the con­tin­ued pos­ses­sion of the leased premises by the ten­ant. If the ac­cep­tance of rent by the land­lord/lessor is made with full knowl­edge and on the ex­press ground that the lessee in­tends to con­tinue the lease, it may amount to ten­ancy by hold­ing over.

In case of a ten­ancy by hold­ing over, no­tice to quit must be given un­der the pro­vi­sions of the Trans­fer of Prop­erty Act, 1882, for ter­mi­na­tion of the on­go­ing ten­ancy. How­ever, if the lessee fails to va­cate the premises be­yond the ter­mi­na­tion no­tice pe­riod, the lessor can seek his or her evic­tion.

Mere con­tin­u­ance of pos­ses­sion af­ter the ex­piry of the lease is not enough to en­ti­tle the ten­ant to es­tab­lish ten­ancy by hold­ing over. A ten­ant can hold over the prop­erty un­der the Act if the land­lord ac­cepts rent or as­sents to his con­tin­u­ing to stay in the premises. In con­trast, a lessee who ear­lier had law­ful pos­ses­sion of the prop­erty but who wrong­fully con­tin­ues to be in pos­ses­sion de­spite ter­mi­na­tion or ex­piry of the lease term, with­out the con­sent of the lessor or with­out any agree­ment be­tween the par­ties is treated un­der the law as a ten­ant by suf­fer­ance.

IS­TOCK

Newspapers in English

Newspapers from India

© PressReader. All rights reserved.