A majority of Indian population is dependent of rental homes or leased homes in order to arrange for their accommodation and with the influx of more and more job seekers into bustling centers of commerce, the pressure on home owners to secure their properties as well as ensure a stable income from rent.
But, more often than not, tenants and owners under different circumstances find themselves at a vulnerable position. Tenants have a fear of unforced eviction whereas the Owners have a fear of troublesome tenants with a nuisance value. Therefore, it is pertinent to look at the rights and remedies available to homeowners and tenants for and against eviction.
RIGHTS OF HOMEOWNERS TO EVICT TENANTS
A homeowner can evict a tenant as per the following conditions laid down in the agreement to rent or lease
i. Failure to pay rent for a mutually agreed upon time period. It can usually be upon failure of payment of rent for two subsequent months
ii. An option of giving one months’ advance notice to vacate the premises
iii. When the tenant sublets the property without the consent of the Home owner in writing
iv. When the tenant uses the premises for unlawful or illegal purposes or other purposes than mentioned in the rental/lease agreement
v. Acts committed or omitted by the tenant that cause damage to the property in terms of value or otherwise
vi. When the home owner needs the property for own personal use
Procedure To Evict A Tenant
i. The first step would be to send a notice for eviction within one months’ time frame.
ii. Upon failure of vacation of premises, a home owner can send a legal notice to the tenant asking for immediate vacation of the rented premises.
iii. The home owner can send an eviction notice to the tenant. This notice needs to be filed under the appropriate jurisdiction of the Court with explicit reasons explaining the need for eviction and the timeline applicable to the tenant to vacate the premises and pay dues if any.
iv. In most cases, a tenant vacates the premises soon after they receive a one month notice, in case even after a legal eviction notice, the tenant does not vacate the premises and decides to contest the eviction, an eviction suit can be filed.
v. The eviction after filing of a suit is now determined after considerable consideration is given to both the landlord and the tenant by the Court and subsequently, a final eviction order/notice is issued.
RIGHTS OF TENANTS AGAINST EVICTION
i. If the eviction is unfair and not explicitly justified by the Home Owner, a tenant has the remedy to be protected against such eviction.
ii. For instance, if the property under consideration is in Delhi, then the Delhi State Legislations and rules shall become applicable.
iii. These state regulations enable tenants to protect them from unjustified evictions in the court of law. On an average such matters can extend upto 10-20 years.
iv. Further, if a tenant has been in occupancy of the premises for 5 years and has been paying rent without any default, eviction will become extremely difficult for the Home Owner unless the reason for such eviction is to occupy the rented property for personal use. The Home Owner cannot use any false reasons or misuse the laws against the tenant.
v. All state acts protect the tenant from unwarranted eviction. In such instances, the tenant must refer to the state laws. For instance, The Delhi Rent Control Act, 1958 stipulates in Section 14 as follows:
“14. (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any promises shall be made by any court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: —
(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section106 of the Transfer of Property Act, 1882
(b) that the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;
(c) that the tenant has used the premises for a purpose other than that for which they were let—
(i) if the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord; or
(ii) if the premises have been let before the said date without obtaining his consent;
(d) that the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof;
(e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation;”
vi. Therefore, in case of eviction it is important to check the state laws applicable to determine the remedies available to a tenant against eviction.
vii. In case a tenant is asked to vacate the premises without sufficient time or in breach of the terms of the rental/lease agreement, then a tenant can approach the Court of Law for an injunction against eviction.
viii. Further, in case the notice of eviction is on false grounds, then the tenant has the option of approaching the rent controller and challenge the eviction notice of the Home owner/ Landlord
ix. The best remedy for tenant is to understand the remedies available to him before signing the rental agreement/lease agreement in order to safeguard against consenting to a term barred under the State Laws.
THE COVID-19 SCENARIO
The Covid-19 pandemic has had large scale ramifications on various sectors in the world. It has also highly affected the Home Owners and especially the Tenants. Due to high loss jobs, the tenants have found it difficult to continue paying rent. In many cases, the tenants all over the country have returned home due to their incapacity to sustain their jobs and pay rent.
In terms of contracts, rental and lease agreements, Covid-19 is a Force Majeure situation. In, Ramanand & Ors. Vs. Dr. Girish Soni, RRC Rev. 447 of 2017; Decided on 21st May 2020, which was a matter of eviction and payment of rent of a property in Khan Market. Pursuant to the Covid-19 Outbreak an application seeking suspension of rent was moved by the tenants on the grounds of complete disruption of the business activity which was a Force majeure event. The High Court of Delhi held that the question of waiver, suspension or any remission in rental payments would operate differently for each category of agreements.
Further the High Court deliberated under Section 32 of the Indian Contract Act, 1872 about the grounds on which the tenants/lessees or other similarly situated parties could seek waiver or non-payment of the monthly accounts, under which the contracts which have a force majeure clause would be governed by Section 32 of the Act. The Court referred to the Supreme Court case of Energy Watchdog vs. CERC & Ors.,wherein it was held that in the case that the contract itself contains an express or implied term pertaining to the issues arising out of a force majeure situation, the same shall be governed by Section 32 of the Act. The Court also held that Section 56 of the Contract Act which deals with impossibility of performance would apply in cases wherein a force majeure event occurs outside the contract.The court would examine under the purview of Section 32 of the Contract Act in terms of force majeure situations.
Section 32 of the Indian Contract Act entails the following:
“32. Enforcement of contracts contingent on an event happening. —Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened. —Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened.” If the event becomes impossible, such contracts become void.”
While deciding another petition, the High Court of Delhi held that non-payment of rent cannot be a ground for eviction whereas the rent cannot be waived because even the home owners can also be financially dependent on the rent. A waiver of rent would be on case to case basis and a proof of facts is must for the same.
The rights of both the Home owners and tenants are necessary to be protected in the ongoing pandemic. In most places in India, many home owners who are not financially dependent either partially or otherwise, have either waived the rent for the lockdown months or have reduced the rents till December 2020 or March 2021. A lot of tenants have received reliefs by the Home Owners acting Suo moto during the pandemic.
Also Read: Difference between Rent Agreement And Lease Deed