NRI Property Rights: How to Fight Adverse Possession

Many Non-Resident Indians (NRIs) choose to invest in real estate in India for several reasons. These may include wanting to keep a link to their heritage, making a sound financial investment, or planning retirement. However, out of all the challenges, many NRIs face one critical challenge: adverse possession, which allows someone to take legal ownership of the property if they have been occupying it without the owner’s consent for a specified period. This article delves into NRI property rights and explains how NRIs can legally fight adverse possession under Indian laws.

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What is Adverse Possession?

 Adverse possession refers to an individual occupying another individual’s property for a prolonged period and then claiming legal ownership.

According to Indian law, a person can claim property ownership after 12 uninterrupted years of possession without the rightful owner’s permission. This rule often leads to legal disputes, particularly for absentee property owners like NRIs.

For NRIs, adverse possession can be a nightmare since they are often not physically present to manage or monitor their property. This makes it easier for squatters to take control of their land or house, claiming squatter’s rights. NRIs must know these laws and learn how to protect their property from being taken over unlawfully.

Understanding how property possession is regulated in India involves the Limitation Act of 1963. Under this Act, if a squatter occupies a property continuously for 12 years without any interruption or acknowledgment of the original owner’s rights, they can legally claim the title. The onus lies on the owner to evict the squatter or reclaim the property within this period.

This law can be particularly problematic for NRIs because managing property from abroad is often challenging. Whether it is agricultural land or a residential house, being away from the property for years makes it challenging to claim adverse possession.

How Adverse Ownership Affects NRI Property

Adverse possession can severely jeopardize an NRI’s investment. The risk of losing property rights looms large if legal action against squatters is not taken within 12 years. As absentee landowners, NRIs may not even know someone occupying their property until it’s too late. By then, the squatter might have legal rights over the property.

In some cases, squatters are mere opportunists, while in others, they might be neighbours or tenants who have overstayed and refused to vacate. Therefore, it becomes crucial for NRIs to be aware of the 12-year property possession rule and take proactive measures to safeguard their property. By being proactive, NRIs can take control of the situation and protect their property rights.

What to Do When Squatters File for Adverse Possession Against Your Property

If a squatter files a claim for adverse possession against your property, it is critical to act promptly and follow the steps mentioned below:

1. Consult a Legal Expert Immediately

Once a squatter files an adverse possession claim in court, the first thing to do is consult a property lawyer specializing in NRI property disputes. Legal guidance is essential in determining the strength of the squatter’s claim and preparing a defence based on documentation and timelines.

2. Gather Proof of Ownership and Control

To fight an adverse possession claim, gather all relevant documents proving your property ownership. These documents could include:

• Title deeds
• Property tax receipts
• Utility bills
• Lease agreements
• Photographs or other proof of visits to the property
• Travel history of last 12 years
• Communication proofs

The goal is to prove that you, as the owner, never abandoned your property or relinquished control over it.

3. Challenge the Squatter’s Claim on Grounds of Interruption

One critical defence against an adverse possession claim is proving that the squatter’s possession was not continuous. If you or your representative interrupted the squatter’s occupation, the 12-year period would reset. You can also argue that the squatter’s possession was not “adverse” if you allowed them to stay (for example, if they were initially tenants or caretakers who overstayed).

4. File a Suit for Recovery of Possession

If the adverse possession claims proceed in court, you should file a countersuit for recovery of possession. This legal action asserts your right to reclaim your property and forces the court to evaluate both the squatter’s claim and your ownership rights.

5. Request an Injunction to Prevent Further Possession

As a preventive measure, you may file an injunction to prevent the squatter from further occupying or altering the property while the case is ongoing. This helps in ensuring that the property remains protected during the legal battle.

Who Cannot Claim Adverse Possession?

The below-mentioned individuals cannot claim adverse possession as per Indian Laws:

1. Tenants or Licensees

A tenant or a person who has legally occupied the property under a lease agreement or with the owner’s permission cannot claim adverse possession. Even if the tenant overstays or refuses to vacate the property, they cannot claim squatter’s rights, as their possession was initially lawful.

2. Co-owners or Joint Owners

Co-owners or joint owners of a property cannot claim adverse possession against each other. Adverse possession claims generally apply to external parties, not those with shared or partial ownership.

3. Caretakers and Servants

A caretaker, servant, or any individual who occupies a property during employment or caretaking duties cannot claim adverse possession. Their occupation is not adverse but relatively permissive, based on the owner’s authority.

4. People Without Continuous Possession

To claim adverse possession, the squatter must occupy the property continuously for 12 years. They cannot claim adverse possession if the squatter was interrupted (by eviction, legal notices, or an owner visit).

Legal Remedies for NRIs Against Adverse Possession:

Fighting adverse possession is challenging but possible with timely action and legal strategy. Here’s how NRIs can protect their property rights in the following ways:

1. Regularly Update Property Documentation

Ensure all your property documents, including title deeds, property tax receipts, and utility bills, are current and maintained. These documents prove ownership and prevent squatters or other parties from claiming adverse possession.

2. Appoint a Reliable Local Representative

Having a reliable local representative or power of attorney to manage your property is one of the most effective ways to prevent adverse possession. Your representative can regularly check on the property, handle any issues with squatters, and take legal action if necessary.

3. Keep a Record of Visits and Maintenance

Regular property management is vital to preventing adverse possession. Keeping a record of your visits and maintenance activities can prove that you have not abandoned your property, thereby protecting your ownership rights.

If you are not residing in India, keep a record of your visits to the property, which can prove that you have not abandoned it. Regular maintenance, including repairs and fencing, demonstrates that you still control the property.

4. File Legal Notices and Police Complaints

If you suspect someone is trying to claim adverse possession, file a legal notice or police complaint. Early legal action can interrupt the squatter’s occupation and reset the 12 years.

Summary

Protecting their property from adverse possession is crucial for NRIs to safeguard their investments and ancestral property in India. The law of adverse possession places a heavy burden on absentee property owners. NRIs should take proactive steps to prevent squatters from claiming ownership through adverse possession. Regular property visits, proper documentation, appointing local representatives, and initiating timely legal action are vital for NRIs to protect their property rights.

FAQs:

1. I am an NRI who inherited agricultural land in India. I haven’t visited it in over 10 years. I just found out a neighbour is farming it and claiming it is theirs. How can I stop them from taking legal ownership?

Answer: Immediately consult a property lawyer and gather all ownership documents, like the title deed. File a legal suit to assert your ownership and reclaim possession before the 12 years are completed.

2. I bought a property in India 15 years ago but have lived abroad since. A local tenant has overstayed their lease by five years and refuses to leave. Can they claim adverse possession? How do I get them out?

Answer: Tenants cannot claim adverse possession because their initial occupation was lawful under a lease. However, since they overstayed, file an eviction suit immediately and serve them a legal notice. The sooner you act, the easier it will be to reclaim the property.

3. I left my house in India under the care of a relative who was supposed to look after it. I have been informed they are trying to claim ownership, saying they have been living there for 12 years. Can they legally do that?

Answer: Your relative cannot claim adverse possession as they occupied the property with your permission. Gather evidence that their stay was permissive, such as communications, agreements, maintenance records, bills, etc. Consult a lawyer to issue a legal notice and take further necessary action.

4. As an NRI, I haven’t paid much attention to my ancestral land for over a decade. I discovered that a neighbour built a wall on the part of my property. Can they claim that part through adverse possession?

 Answer: The neighbour cannot claim adverse possession if the wall has been vacant for over 12 years. Later, immediate legal action was taken to challenge their encroachment and file a suit to remove the wall. Gather proof of your land boundaries to strengthen your case.

5. I own a flat in Delhi, which has been emptied for 14 years. I have just found out a family has been living there for 13 years without my permission. What should I do to stop them from claiming ownership?

Answer: Since they have crossed the 12-year mark, they may file for adverse possession. It is essential to act swiftly by gathering proof of ownership, filing a suit to recover possession, and challenging their claim. You will require substantial documentation and evidence to show they did not have legal ownership.

6. I rented my house to a family over 20 years ago in Mumbai, India, but they last paid or vacated it 15 years ago. Can they claim adverse possession, and what steps should I take to reclaim my property?

Answer: Since they started living as tenants, they cannot claim adverse possession, even though they overstayed. File an eviction suit, serve a legal notice for non-payment of rent, and take action in court to recover possession of property. Ensure your rental agreement and other related documents are in order.

7. My brother and I jointly own a house in Kolkata, but he has lived there while I’ve been abroad. Can he claim adverse possession against me for my share of the property?

 Answer: No, co-owners cannot claim adverse possession against each other. You retain ownership of your share of the property regardless of his occupation. If necessary, file a partition suit to formalize your share or reclaim control over the property.

8. I have appointed a caretaker for my property in India while living abroad. Recently, I’ve heard rumours that they are trying to take over my land. Can a caretaker claim adverse possession? How should I proceed?

Answer: A caretaker cannot claim adverse possession since they occupy the property with your permission. However, it is essential to revoke their authority if they are trying to overstep. Issue a legal notice and replace it if necessary.

9. A distant relative has been staying in my property in India for free while I’ve been living abroad. Now, they say they have the right to claim ownership. Can they do this? What should I do to stop them?

Answer: No, a relative living rent-free cannot claim adverse possession. Issue a legal notice to ask them to vacate the property, and if they refuse, file an eviction suit. It is vital to gather proof that their occupation was permissive, not adverse, to challenge future claims.

10. I received the summons from the court, and after enquiry, I learned that someone was trying to claim my property in India through adverse possession. Still, I have all my documents, including title deeds and utility bills, in order. Will this be enough to defend against their claim?

Answer: Proper documentation, such as title deeds and utility bills, is critical for defending against adverse possession claims. These documents prove that you maintained ownership and control over the property. Use them in court to challenge the squatter’s claim and file for recovery of possession, if necessary.