Adverse Possession In India - Concept and Implications for Real Estate And End Users

 

SUMMARY

Adverse possession allows trespassers to gain legal title to a property after continuously occupying it for at least 12 years in India. Property owners risk losing land rights if unauthorized occupants succeed in adverse claims after the statutory limitation period expires. This article explains adverse possession under Indian law, including legal recourse for original owners, the importance of eviction notices, and preventing adverse possession cases. The Supreme Court has ruled that tenants cannot claim adverse possession.

Concept of Adverse Possession

Adverse possession is a legal principle in India where a trespasser can gain rights to a property by continuously occupying it without permission for at least 12 years. This often leads to complex property disputes and poses risks for landowners. The concept is governed by the Limitation Act 1963, with a statutory period of 12 years. If the trespasser meets specific criteria, they can claim legal ownership, impacting Indian real estate and property disputes.

Implications

For Real Estate

Adverse possession laws significantly impact real estate transactions, posing risks for property owners. Buyers must ensure sellers have a legitimate title with no adverse claims. Banks are cautious about granting loans for disputed properties. Registries may refuse transfers when adverse possession suits are pending. Realtors must disclose adverse claims to clients. Vigilance and due diligence are essential to avoid disruptions in real estate deals.

For End Users

Adverse possession is a significant risk for homeowners, especially NRIs. If a trespasser openly encroaches on their property and the owner fails to take legal action within 12 years, the trespasser can obtain adverse possession, invalidating the original title. Homeowners may also lose rights over portions of land if a neighbour encroaches upon parts of their boundary for over 12 years. This emphasizes the importance of protecting the land against unauthorized occupation and the need for homeowners to be vigilant and proactive in such situations.

Property Disputes and Adverse Claims

Many bitter property disputes involve adverse possession issues. For instance, a person may suddenly claim legal title to your ancestral land based on long-term unauthorized occupation spanning over 12 years. In such cases, property lawyers can be engaged to counter adverse claims. The limitation period of 12 years comes into play. Evidence must be produced in court about efforts to evict trespassers. Ultimately, judges decide on merit if adverse claims are valid in property cases.

Can a Tenant Assert Adverse Possession?

Tenants or renters must understand the conditions under which they can assert adverse possession. If they can prove that the ownership was open, continuous, hostile, and exclusive during that time, they may attempt to acquire property ownership through adverse possession. This understanding empowers tenants to protect their rights and interests in the following situations.

Real ownership

To succeed in this situation, the renter needs to take steps to take back the property as his own. The renter had to occasionally use their ownership authority to exercise jurisdiction over the land. 

Continuous

Tenants acquire total control of the property if they have managed it for an entire 12-year period without the original owner's presence and if the property has not been divided during that time.

Exclusive

The renter must have made certain additions, upgrades, and other modifications to the property. This gives the tenant the legal right to make an ownership claim and further validates their exclusive title to the property.

Open

To satisfy this criterion, the tenant must provide proof to outside parties that they have resided on the property for a minimum of 12 years. Establishing a property line, making additions and repairs, and preserving cordial ties with the property's neighbours are a few strategies for doing this. It is crucial to engage with your neighbours.

Hostile

In a hostile case, tenants may declare that the agreement to claim property ownership is illegal if the title deed is defective. The agreement is deemed dissolved if the tenant stays on the property for an entire 12-year period following the termination of the contract or if the owner does not make any further effort to reclaim ownership rights. In such cases, the tenant is granted a justifiable chance to claim possession of the property.

When is the claim to an Adverse Possession not possible?

It's important to note that establishing an adverse possession claim involves both factual and legal issues, and claims are only sufficient with evidence. The paperwork should provide proof of hostile, ongoing, and open possession. However, there are explicit situations where adverse possession claims are impossible, providing certainty and clarity in the legal landscape.

Permitted ownership 

It's impossible to change permissive possession into adverse possession, especially if it has always been permissive. The person in permissive possession must stop entering the property when the landlord says they would like it terminated, or their continued entry will be considered unlawful.

Absence of malice or intent

Depending on the property type, proving the animus possidendi (intent to possess) by occupation is a prerequisite for asserting exclusive title. It is widely accepted that the agent is in possession of the principle due to the fiduciary relationship between the parties.

Lack of a legitimate legal claim

Case history- In the case of Palaniyandi Malavarayan v. Dadamalali Vidayan, the Andhra Pradesh High Court heard arguments about the right to be a temple's trustee, stating that this right cannot be acquired through adverse possession if there is a legitimate trustee who can claim the position.

The Supreme Court of India has the final say on such matters, and its decisions set legal precedents. To claim adverse possession of a property, one must demonstrate when the possession began, how it was initially acquired, whether the owner noticed the non-permissive use and the duration of the continuous possession.

Case History- On January 3, 2024, the Supreme Court ruled on the case of Brij Narayan Shukla versus Sudesh Kumar alias Suresh Kumar & Others. The dispute involves a 3500 sq. ft plot of land in Hardoi, U.P. The appellant claims to have purchased the land in 1966, but the respondent objected when he tried to construct on the land in 1975. The respondent contended that the land belonged to their ancestors and claimed possession based on a 1944 rent suit settlement.

The Supreme Court overturned the High Court's decision to dismiss the appellant's case due to time constraints and ruled in favour of the appellant, granting possession of the suit. The judgment establishes that a tenant cannot claim adverse possession against the landlord.

FAQs

What is adverse possession?

Under Indian law, adverse possession refers to acquiring legal ownership of a property that originally belonged to someone else by occupying it without permission for over 12 years.

Who can claim adverse possession in India?

Any unauthorized trespasser who has openly, continuously, and exclusively occupied someone else's property for over 12 years can claim valid title under adverse possession rules.

What if the original owners are unaware of trespassing?

Lack of awareness about trespassing does not prevent adverse possession claims. If the occupation is open and meets other criteria, adverse rights can be claimed after 12 years.

Can I use adverse possession for my benefit?

You cannot simply trespass on others' property, hoping to claim it later. Strict criteria apply, such as open and hostile possession, excluding the valid owner. Adverse possession is not an offence but plead as a defence when sued.

What if we allow neighbours to use parts of our land?

If neighbours use portions of your land for over 12 years 'openly and exclusively', it could create grounds for them to obtain adverse possession successfully. So, you must object within the limitation period.

Can authorized tenants or license holders claim adverse possession?

No, authorized occupants like tenants, licensees, etc., cannot claim adverse possession rights over the property as their possession is on behalf of the actual owners.

How is the plaintiff's evidence challenged in adverse cases?

Challenging evidence regarding the nature of occupation as open/continuous hostile possession for over 12 years is a crucial defence strategy against plaintiffs claiming adverse rights.

How do we prevent claims of adverse possession by trespassers?

Taking legal action within 12 years against trespassers, objecting to unauthorized use,  or fencing/walling disputed parts of land helps prevent future adverse claims.

What are the best defences owners have against adverse claims?

In addition to challenging occupation criteria or a 12-year timeline, owners can argue that adverse claims breach principles of justice, equity, and good conscience. Compensation offers can also deter absolute transfer.

Is adverse possession ethical, even if legally valid?

The Indian concept of adverse possession has faced ethical objections. However, courts rely on the statute of limitations—barring claims after a fixed period, even if initially valid—as the basis for recognizing adverse rights. Prominent cases have, however, imposed reasonable compensation payable to dispossessed owners.