Whether you are a landlord or tenant, you are entitled to certain legal provisions,says Lakshmi Krupa
When people let their homes out for rent, they are often letting strangers into their fold. It is only understandable that home owners are usually anxious and very particular about who occupies their property. While this ends up adding more hurdles to house hunters, with proper care, particularly from the legal point of view, both parties can benefit from knowing that they are entering into a secure agreement. This is why it is always advisable to get your lease agreement drafted or vetted by a lawyer. Prashant Rajagopal, Partner, Kalliat & Gopal Advocates, offers nuggets of wisdom for both parties.
Whether you place an ad in a newspaper or find a tenant through word of mouth, ensure that you have a watertight lease agreement drawn up to protect your property as best as you can. Rajagopal lists the important points that must be ensured in the agreement:
l The landlord or his office representatives should have the right to inspect the premises.
l A clause stating that the tenant must not be permitted to carry out any illegal or unlawful activities.
l A clause stating that the tenant will not cause any nuisance in the neighbourhood or to co-habitats of the building.
l The tenant must not be permitted to sub-lease the premises or any portion thereof.
l At the closing of the lease the tenant will restore the property to its original condition.
l The tenant shall not use the property in a manner that may cause injury or damage to the property.
l The tenant shall not put up any permanent structure.
l The tenant will hand over possession of the property on termination of the lease.
In Tamil Nadu, the police had asked landlords to file information about tenants, including their photographs. Explaining this, Rajagopal says, “The Tamil Nadu Police had posted an application form for information on tenants on its websitewww.tnpolice.gov.inwhere the landlord is required to give his tenant’s details, tenant’s present and permanent address, the tenant’s photographs as well as his/her ID proof.” While the police say that their intention is to track down criminals and create a database of tenants (made effective from 01.12.2013), Rajagopal points out that a PIL has been filed in the Madras High Court opposing this move as tenants feel that this is violative of their privacy and that the order must be quashed.
Sub-letting is common practice these days in Chennai. One person takes a house on rent, works on it a bit, adds some furniture and then sublets the apartment to someone else. Rajagopal explains the law on sub-letting. “If the lease agreement does not confer any right on the tenant to sub-let the premises or any portion thereof, then the landlord on gaining knowledge of such sub-letting can file a petition in the Rent Control Court at Chennai u/s.10(2) (ii) (a) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, if the premises is more than five years old,” he says. On the other hand, if the premises is less than five years old, then the only option for the landlord is to institute a suit in a civil court of competent jurisdiction for eviction of the tenant and the sub-tenant on the ground of sub-letting.
Landlords are sometimes also faced with problems wherein they lease out their apartment to one person, but subsequently find out that someone entirely different has occupied their house.
“The only option, apart from sending a notice to evict them, is to approach the courts for suitable recourse.”
In such cases, landlords may approach the rent control courts if the building is seven years old and seek eviction of the tenant as well as the sub-tenant on the ground of sub-letting (provided the lease agreement does not confer the tenant with a right to sub-lease the entire premises or a portion thereof), explains the lawyer.
Not just landlords but tenants too have a say in the lease agreement. Rajapagopal offers a quick checklist that will come in handy if you are looking to rent a home:
l The landlord has clear and marketable title to the petition premises. The tenant shall be entitled to peacefully reside in all of the property without any disturbance from the landlord subject to the tenant fulfilling all the terms and conditions mentioned in the lease agreement.
l The landlord shall inspect the premises only after giving due notice to the tenant.
l In the event of the landlord selling the rented premises he shall inform the tenant with prior notice and give the tenant option to either vacate from the premises or continue the lease under the new landlord.
l The landlord shall pay all his statutory taxes with regard to the rented property and shall not do any act which may hinder the peaceful living of the tenant.
l The landlord shall disclose any material defect in the property.
l If the property is destroyed or rendered unfit for lease then the tenant may terminate the lease at his option.
There are many people who move into someone’s home as a paying guest. “Any person who occupies a portion of premises as a paying guest is on a weak footing legally,” warns Rajagopal. Indeed, a paying guest has very little protection, legally, compared to a tenant.
He explains, “Such a person will at the most be treated as a licensee and will not gain the protection afforded to tenants under the Rent Control Act. A licence does not create any right in the property unlike a lease.” Should the landlord revoke the licence, then the tenant’s occupation becomes unlawful. So think twice about your PG status.
Be sure to check what your electricity reading says. “In the context of paying guest accommodation, since the purpose continues to be residential, there may not arise any need to change the electricity meter from domestic to commercial.” So, ensure you are charged only residential rates. There are also many people who offer bed and breakfast arrangements. Legally, there is no protection whatsoever to persons who take up such accommodation either on a daily or weekly basis. “Such persons occupy the room only at the will and pleasure of the landlord and can be asked to vacate the room at any point in time.” So the next time you are going on a vacation to stay at a B&B, ensure that you find a property that comes with good recommendations about the host/landlord.
One of the most common complaints in Chennai and across the country is the profiling of tenants based on caste and religion by landlords. Unfortunately, Rajagopal explains, this is something that can only be scorned upon and as such there is no legal recourse to people who are denied such accommodation, as it is a person’s personal choice about who he wishes to rent out his property to.
“In any such matters of personal choice the courts cannot interfere by providing any relief to persons who have been denied accommodation as a result of a landlord’s personal choice in determining who should be his tenant,” says Rajagopal.
Finally, it is most common these days for three or four young singletons to rent a home together. If you are one such person, here’s some advice. “You must bear in mind that the tenancy is determinable on any one of them not fulfilling the terms and conditions of the tenancy. As such, if there is default in payment of rent by any one of them, the tenancy of the others is also at risk!” Thus, when three or four people take up a home on rent, apart from the normal clauses Rajapgopal advises that it is best that they insist on a clause that states that if any one of them desires to vacate the premises, the rest of them shall be entitled to continue in the premises as tenants by either bringing in a new tenant or by themselves continuing as tenants by agreeing to pay the prevailing monthly rents.”