355. How to evict tenant in

India

Q. Hello Mr. Chand I highly appreciate the advice you are rendering. I am from Andhra Pradesh and stay in US for work. Last year I constructed a home back home in India and got in talks with a person who wanted to use it for setting up a pre school in two floors of the building. Unfortunately I had to leave immediately and my father dealt with writing a lease agreement later. Unfortunately the lease terms set forth in the agreement were quite different from what I wanted them to be and turned out to be very favorable to the tenant. The tenant is paying rent below market value and in addition to that is denying the payment of commercial tax we incurred because of his pre-school set up. My father didn't talk through these terms prior but after bit of a hassle he agreed to pay half the amount of commercial tax. All in all its is still a loss proposition for me both financially as well as emotionally. I am quite frustrated with the attitude and the exploitation of the property by the tenant which we built with a lot of personal investment of money and time. Though my father signed the lease agreement, the house has been in my name prior to signing the agreement. Under this scenario what are my chances to negate the agreement signed by my father and put a new one in place. If the tenant denies the same what are my chances to evict him. Your advise will be of great help to me. Name withheld on request. A. The chances of evicting your tenant, in my opinion based on your email, as I am not privy to the lease agreement: 1. Your chances of evicting your tenant are nil. 2. While you may be the owner and your father signed the rental lease, your grouse is not that the lease was signed without your consent. The problem you have is that the terms of the agreement, were not as you had desired. If you gave your father the authority to sign the lease, then you are bound by it. 3. To negate the lease on the basis of a non- owner signing the lease, you would have to claim your father signed the lease without your permission. This would of course, lead to legal problems for your father and the chances are, you still will not be able to evict the tenant as they acted in good faith. 4. You state in your email, 'tenant paying below market value'. If the tenant is not paying the amount mentioned in the lease, that could be a valid reason for eviction. However, if the rent set in the agreement is what is being paid, and you feel the rent is below market value, then the tenant cannot be faulted for having negotiated a low rent. 5. Regards to commercial tax, if the responsibility of paying the tax is not clearly mentioned in the agreement, then the tenant has no liability to pay it Options you may have: • You could either wait till the current lease expires and not renew it. This is of course depends on the terms and duration of your current signed agreement. • Consult a lawyer, check if you can evict under Sec. 10 (3) (c) of the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Act, 1960: "A landlord who is occupying only a part of a building whether residential or non- residential, may, notwithstanding anything in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for the purpose of a business which he is carrying on, as the case may be." If you use this route, be prepared not to rent out the premises for some time. This procedure cannot be used as an excuse to evict and the requirement must be genuine. My advice to you would be first to take steps to avoid involving your father in any conflicts with the tenant. Evicting tenants is not an easy matter, it can be quite taxing emotionally for many young people leave alone the elderly. I suggest: • If the period remaining on the lease is for a year or two, let your tenant know that you will not be able to renew the agreement, as you require the accommodation for yourself. • You would during this period have to suffer the monetary loss. This may be a lot less than what legal eviction will cost, in terms of not only money but also time and a lot headaches, you can't even imagine. • The third option is to payoff the tenant to vacate. Sounds odd, but its done quite often in India. In my book 'THE NRI GUIDE I have a chapter on renting property in India, and the types of rental agreement to enter into. For the benefit of all readers, they should protect themselves by not signing rental ease agreements but opt for leave and license agreements. Here are some of the reasons for which a tenant can be evicted: 1. Breach of condition of tenancy 2. Subletting (unless agreement allows) 3. Default in payment of rent for specified period 4. Requirement of building for own occupation 5. Material deterioration in the condition of the building