Property Dispute








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What does Property Dispute Mean?

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As the name suggests, property dispute is a legal dispute related to property in India. About 66% of all cases in India are property-related disputes. There are various types of property disputes. These could often arise through claims from co-owners, family, legal heirs, misrepresentation by seller, bad title of property, disputes related to property acquired as a gift or through Will, disputes related to easements rights, etc.

Wars over wealth (including property) take place across every stratum - from low-income households to ultra-rich families, hence making property disputes (within families) a common occurrence in India. The obvious solution for most is to drag the matter to the court instead of settling down. However, most people don’t realize that apart from being a tedious and expensive process, courts in no way guarantee a satisfactory resolution. It is, therefore, advisable to opt for a family settlement. Here are some points that will make you understand the concept of settlement better.

Suit for Eviction/Possession in Landlord/Tenant Dispute

The first step landlords must take when they want to remove problem tenants from their rentals is to terminate the tenancy. In most states, this involves giving the tenants one of three possible types of written notice. The notice will either give the tenants a certain amount of time to fix the problem that led to the notice (called a cure period) or give them a deadline by which they must move out. Delivering the notice, known as “serving,” must be done according to the procedure outlined by law.

The tenants’ response to the notice determines whether the landlord can file an eviction suit. When tenants who were given a second chance remedy the situation within the cure period, the landlord cannot file an eviction suit. However, when tenants ignore an unconditional notice to move out, or fail to cure the situation (fix the problem, stop the behavior, and so on), the landlord can begin eviction proceedings.

Filing an eviction lawsuit is the only legal way to physically remove tenants from a rental—landlords cannot change the locks, remove tenants’ property from the premises, or take other “self-help” measures to get the tenants out.

If the landlord wins the eviction lawsuit, the landlord will have the right to have law enforcement physically remove the tenants and take possession of the rental. In most cases, tenants move out before law enforcement arrives.

Filing an Eviction Lawsuit

Eviction lawsuits go by many names: Depending on the state, the official title of an eviction suit might be an unlawful detainer suit, a dispossessory proceeding, or a forcible entry and detainer suit. No matter the name, landlords must take the following steps before a court can issue an eviction order.

   Find the right court.

In most states, eviction lawsuits are handled in local trial courts (often called “municipal,” “county,” or “justice” courts), or in small claims courts. A few states and cities have their own landlord-tenant courts dedicated to hearing eviction matters. If you’re not sure what court handles eviction matters in your area, call the clerk of the court near you or visit the court’s website—most contain information about the types of cases the court can hear.

Eviction lawsuits go by many names: Depending on the state, the official title of an eviction suit might be an unlawful detainer suit, a dispossessory proceeding, or a forcible entry and detainer suit. No matter the name, landlords must take the following steps before a court can issue an eviction order.

   File the complaint.

  Wait for the tenants’ response.

  Serve the tenants.

The Court Date

In court, the landlord will have to provide evidence supporting the termination of the tenancy and explain why eviction is warranted.

In court, both the landlord and the tenants will have the opportunity to present their version of what’s going on. The landlord will have to provide evidence supporting the termination of the tenancy and explain why eviction is warranted. The tenants can offer one or more defenses to eviction, perhaps by demonstrating that the landlord doesn’t actually have cause to evict, or that the landlord didn’t follow proper termination procedures or court filing rules.

The formality and scope of the first court date varies among courts. Some courts require the parties to meet with a mediator in an attempt to work out an agreement before going to trial. Occasionally, landlords or tenants file motions (written arguments) that precede the trial date and attempt to knock the case out of court without having to go through a trial. Most of the time, the judge overseeing the trial will decide the case on the spot or within a day or two of the hearing. When a jury is involved, though, the process can take much longer, as the jury must deliberate and the judge must approve its decision before issuing the final judgment.

What if the Tenant’s a No-Show?

When tenants don’t answer the complaint and don’t appear on the court date, the landlord can request the court to enter a default judgment. A default judgment is an order by the court finding in favor of the landlord based solely on the fact that the tenants didn’t respond. Most courts will grant the landlord’s request for default judgment so long as the landlord appears and has properly terminated the tenancy and served the summons. The judgment will give the landlord the right to have law enforcement remove the tenants and possibly award the landlord back rent, attorneys’ fees, and court costs.

Even when the tenants move out before the court date, the landlord should appear in court. Aside from the fact that the landlord needs to finalize the lawsuit and obtain the default judgment, there’s always a chance that the tenants will show up. If the tenants appear but the landlord’s a no-show, the court could actually find in the tenants’ favor and order the landlord to pay the tenants’ costs and attorneys’ fees.

The Court’s Decision

When a landlord wins an eviction suit, the judge issues an order declaring that the landlord has the right to possession, and might order the tenants to pay back rent, court costs, or other expenses. The court will also issue to the landlord the writ of possession (called a judgment for possession or warrant for removal in some areas)—an order directing law enforcement to physically remove the tenants. The landlord can later deliver the writ of possession to the proper law enforcement office to initiate physical removal. In some areas, courts issue the writ immediately; in others, courts must wait before issuing a writ (usually no more than 48 hours).

When tenants win an eviction suit, they have the right to remain on the property. Depending on the terms in the lease and state law, the court might order the landlord to pay the tenants’ court costs and attorneys’ fees. The court might also order the landlord to pay the tenants an additional amount if it determines the landlord acted illegally—for example, if the landlord terminated the tenancy for discriminatory or retaliatory reasons.

Eviction

The landlord must take the order of possession to the local law enforcement office that carries out the physical eviction—usually the sheriff’s or marshal’s office. For a fee, an officer posts a notice at the rental telling the tenants to leave within a certain amount of time (usually between 48 hours and two weeks). If the tenants aren’t gone when the officer returns, the officer will physically remove the tenants.

The procedures for physical evictions vary. Many law enforcement agencies require landlords to be present. If a landlord doesn’t comply with local and state requirements, law enforcement will most likely abandon the eviction, and the landlord will have to pay another fee to begin the process again.

Landlords often handle eviction suits on their own in an effort to save money. For many landlords—especially those who’ve been through the eviction process before—this approach makes sense. In certain situations, though, landlords should consider consulting with or hiring a local landlord-tenant attorney. For example, landlords who have never evicted a tenant before could save themselves a lot of hassle by consulting with an attorney for advice on how to navigate local courts. Likewise, experienced landlords might benefit from hiring an attorney to handle evictions with unusual facts or where the tenants dispute the landlord’s reasons for terminating the tenancy. Landlords evicting tenants who are protected by rent control or eviction protection should realize that these tenants have a heightened incentive to win, and will most likely hire their own counsel. Whenever a tenant appears with an attorney, rent control or not, the landlord should strongly consider “lawyering up” as well.

What is Family Settlement?

In a nutshell, a family settlement is an agreement where family members mutually work out how a property should get distributed among themselves. All the parties should be related to each other and have a claim to a share of the disputed property. The latter need not be limited to real estate, but can also cover movable assets like jewellery or money in bank accounts. A family settlement is usually used to settle common property or joint property that the family owns as opposed to individual or self-acquired property.

Partition Through Family Settlement Agreement:

A family settlement is an agreement between family members, generally made to avoid any court disputes and divide the family property with mutual understanding. A family settlement agreement is made in the same format of a partition deed. Moreover, a family settlement agreement does not require registration and stamping.

A family settlement agreement must be signed by all the members of the family voluntarily, without any fraud, coercion or pressure from any family member. In addition to this, it is not necessary that the family settlement agreement is drafted in a written document and can be executed either by a compromise or by a mutual understanding between the family members.

USPs:
  • For those who wish to avoid protracted, public and messy court battles
  • Quicker, more harmonious way to resolve disputes.

Procedure:

A family settlement is a conciliation process where a third person, usually a lawyer or a senior family member, helps the family arrive at a mutually acceptable solution to the property dispute.

A family settlement may not be a single legal document incorporating the distribution of the property; it can also be a series of documents spelling out the property rights of each of the family members.

A settlement instrument is neither a gift nor a transfer of property as per the provisions of the Income Tax Act. Therefore, separate transfer of property documents will have to be drawn up in addition to the said family agreement in order to bring about an actual transfer. The tax fact must be taken into consideration while a transfer of property is decided.

Partition/ Settlement Suit in Family Disputes in India

Now, before a case is filed in court for partition of property, a legal notice has to be sent to the other co-owners of the property regarding family property partition/ settlement. The legal notice for partition suit must state the shares of each co-owner, complete details of the property in dispute and the requisite action required to be taken. If the co-owners do not reply to the legal notice or send an insufficient reply, a partition suit can be filed in the court.

A partition suit is a court case filed when none of the co-owners agrees to the terms and conditions of property division, and one or more co-owners want to divide the property according to their shares. A suit for partition is filed in the court which has jurisdiction over the area in which the property is located.

The court first determines whether the person who has filed the partition suit has a rightful claim in the property or not. One the share is established and no additional inquiry is needed, the court may assign individual ownership of the property to the co-owners.

If the property cannot be distributed merely on the partition suit, the court may order for an inquiry to be conducted and pass a preliminary or initial decision for appointment of a Commissioner who will then evaluate the property and submits a report. The court then determines the share of each co-owner on the basis of the said report and divide the property according to each co-owner’s share.

Can Family Settlement of Self-Acquired Property Take Place?

Self-acquired property settlement can't be executed during the lifetime of a person who had acquired it, but at the same time, the self-acquired property automatically becomes a part of the ancestral property on the death of such person. However, the person can assign the self-acquired property through his/ her will to any person he desires.

Legal Requirements:

Merely reaching a consensus is not enough; there are a few legal formalities that must be completed to ensure that the agreement is valid.

  • The settlement document must be signed by all the family members involved. A missing signature can easily become ground for challenging the document in court at a later date.
  • As a safety measure, the document should be attested by two witnesses, though it is not mandatory.

Registration:

The next step is to register the agreement. According to Section- 17 of the Indian Registration Act, a family settlement that purports to assign immovable property must be mandatorily registered or the deed would be invalid. A stamp duty is applicable to such deeds and the amount would depend on the value of the property involved.

Binding Factor:

While a duly executed family settlement cannot be revoked, except by a court decree, it can be challenged in a court of law under the following circumstances.

  • An agreement that is brought about by fraud or coercion
  • Any misrepresentation of facts regarding the title of the disputed property, too, can lead to future altercations.
  • Improper execution.

Paying heed to these common tripwires while drawing out an agreement will result in a foolproof, amicable and binding family settlement, which benefits everybody.

Why do You Need a Lawyer?

Sometimes the law and the legal framework can get confusing and difficult to understand, especially when the issue is regarding a dispute related to family property. In such a scenario, one may not realize how to determine the legal issue, the area to which the issue relates to, whether the issue requires going to court and, how the court procedure works. Seeing a lawyer and getting some legal advice can enable you to comprehend your choices and can give you the certainty to enable yourself to determine your legal recourse.

An experienced property attorney can give you expert advice on how to handle your property issue owing to his years of experience in handling such cases. An experienced property lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he can avoid delay and get your share in the property as quickly as possible.