This Article is written by Vaishnavii, Intern under Legal Vidhiya
Mr. Y rented his flat in Bangalore to Mr. X for a period of two month from August 9,2015. The rent was a fixed amount of Rs. 10,000 per month. They signed a rent agreement underlying the obligations and rights of both Mr. Y, the landlord and Mr. X, the tenant. After the completion of the specified duration, Mr. X vacated the flat. At the time when Mr. X vacated the flat, Mr. Y was not in the country. Mr. Y came back after 3 months and went to visit his flat, he found his flat in remorseful condition. The walls of the flat were damaged and all the other amenities were destroyed completely.
The question arises,
- Was Mr. X obliged to take care of the flat, that was owned by Mr Y, for the time period he enjoyed the possession of his property? If yes, then what are his other obligations?
- Can Mr. Y sue Mr. X and claim damage for his property even after Mr. X paid all his rent and vacated the flat on time?
Overview: –
The concept of tenancy has varied widely in different time periods. In past, tenancy existed in the form zamindari where the zamindars or the ones who owned the lands, gave their lands to peasants, small farmers or landless farmers for agricultural in return of the decided share in the total agriculture produce. It was only the zamindar who decided these shares. As time passed, this system of zamindari turned into exploitation of these farmers byt he zamindars.
In present times, tenancy gives a general notion of a person lending his property say flat to another person for a specific duration of time for a pre-defined consideration say rent. The transferor is known as the landlord and the transferee is the tenant. This transfer of possession end as that time period is completed.
In India, there are various laws that govern the tenant-landlord relationship for example Transfer of Property Act, 1882 and Rent Control Act. Besides almost each state in India has there own Rent control and accommodation acts applicable withing their boundaries. For example, the Madhya Pradesh Accommodation Control Act 1961, Delhi Rent Control Act ,1958 etc. These act provide for the regulations of letting and renting accommodation, trials and evictions of tenants and landlords etc.
In this article, we shall study the duties of tenants and landlords as per the Transfer of Property Act,1882. Section 108 of the act as well as as per the various state Rent Control Acts.
Who is a landlord and a tenant?
In the illustration mentioned above, Mr. Y, who temporarily transferred his property for a particular time period in return of a consideration viz. rent through an agreement or a lease deed, is the landlord. In general notion, a landlord is the owner of the property for example flats, house, land, shop etc. Mr. X who enjoys such right is the tenant.
After a lease is signed, tenancy comes in existence. According to Section 105 of the Transfer of Property Act ,1882 lease is a temporary transfer of the eight to enjoy the possession of an immovable property from one person, say the owner, to another person i: e tenant for a specific duration of time in consideration of a pre-defined specific value, say rent. The lessor of the transferor is known as the landlord with whom lies the ownership of the property and the lessee or the transferee is the tenant.
The landlord has an unquestionable authority to transfer the right to enjoyment of the property to the tenant.
What are the Duties of a landlord?
According to Section 108 of the Transfer of Property Act, 1882, in the absence of a contract or local usage to the contrary, the lessor or a landlord of an immoveable property possess the following liabilities against the lessee or tenant, as applicable on the property: –
- Duty to disclose to the tenant latent material defects: –
Latent material defects imply to the defects that are substantial nature, i: e if the defect was already known to the tenant, he would either not have accepted the lease or would have agreed to it on different terms, and are not clearly visible but the landlord has a complete knowledge of it. The landlord is obliged to inform the tenant about such defects. In case the landlord doesn’t informs the tenant about it, he breached his duty. If the landlord too has no knowledge of any such defect, he cannot be held liable for any such breach. It is the duty of the landlord to provide habitable condition to the tenant. (Section 108 A(a))
Illustration-
A rented a flat from B for one year. B, who is the landlord, knew that there a severe water seepage issue from the ceilings even if it rains slightly. He didn’t inform about it to A. After a while, it rained heavily in the city and due to water seepage, some of the expensive possessions of B were damaged. A is held liable for such damages as even after his knowledge about such seepage, he didn’t inform B about it. Had it been already known to B; he would have not agreed to the lease at the first place.
Case: –
Radha Krishna v. W.C.O Flaherty, 1869
The lessor impliedly contracts with Radhe Krishna, the lessee and assures that the house is fit for the intended user. Radhe Krishna rented a dwelling house form the defendant. One day while lighting a fire in the fireplace, the chimney caught fire and since there was no ventilation, the plaintiff’s furniture was destroyed. In this case the defendant was held liable as even after the knowledge of fact he didn’t inform the lessee.
- Duty to give Possession of the property: –
Lease is the agreement to transfer the right to enjoyment of the possession of the property. After tenancy comes into existence, the landlord is obliged to deliver the possession of the property t th Tenant for his use thereafter for the specified period of time. The possession can be actual or constructive. If the landlord fails to do so, tenant can sue the landlord for breach. If the third party owns the possession of the property even after the lease agreement, the tenant can sue the third party. (Section 108 A(b))
Illustration: –
In Munne Dutt v. William Campwell ,1869, it was held by the court that is is implied on the lessor to transfer peacefully the possession to the lessee.
In Pemmarazu v. The Se of State of India ,1911, it was held by the Court that in case where lessor is not able to transfer the possession of the demised area, he is liable to compensate the lessee by the means of damage.
- Duty to non-interference (Covenant for Quite Enjoyment): –
Once the possession is given to the tenant, and if the tenant abides by all the terms and conditions as prescribed then it is an implied duty of landlord to ensure the tenant a peaceful enjoyment of this right of possession. It’s an absence of interference or objection. This covenant protects the tenant not only from disturbances by landlord but also by any person claiming under him. (Section 108A(c)).
This However, this doesn’t stop the landlord from regular visits to his property.
Illustration: –
X is the landlord and Y is his tenant. Y pays the rent on time and follows all the instructions that were decided mutually by X and Y. X cannot interfere Y while enjoying his Possession.
What are the Duties of tenant? :-
According to Section 108 B of the Transfer of Property Act, 1882, in the absence of a contract or local usage to the contrary, the lessee or a tenant of an immoveable property possess the following liabilities against the lessor or the landlord, as applicable on the property: –
- Duty to disclose facts: –
A tenant must disclose any material fact known to him which might increase the value of property. If he is in knowledge of any such fact, he must convey this to the landlord. If he doesn’t do so, the landlord can sue him for the damage. The remedy available to the landlord is claim compensation or damages and not the avoidance of lease. (Section 108B(k))
However, this is not applicable on agricultural leases.
Illustration: –
A is the landlord and B is the tenant. A rent out his land to B. While tilling the land, B found pots filled with precious gold ornaments buried in soil. Instead of informing A about this, he sold the gold and kept the money. When this incident came to knowledge of A, he can claim damages from B.
- Duty to pay rent: –
The tenant is bound to pay rent or premium as already decided to the landlord at proper time and place. The date of paying the rent begins from the date on which the tenant takes possession and not from the date on which the landlord signs the deed. (Section 108B(l))
However, this is not applicable in contractual and agricultural leases.
Illustration: –
A rented his flat to B in consideration of Rs 10,000/- per month. B moved in the flat on August 12,2015 but the deed was signed on September 30,2015. B is liable to pay the rent for the time period of August 12,2015 to September 30,2015 even though the deed or agreement was signed one month later.
- Duty to maintain Property: –
It is obligatory on the tenant for the maintenance of the property. A tenant is only responsible for the damages caused out of his use of the property. However, he is not liable for the damages that are not caused by his use. He must return the property in the same condition as he initially received it in. (section 108B(m)).
This clause also allows the lessor and his. Agent, during the term of the lease to enter upon and inspect the property. If it is found by the lessor or his agents that the tenant has made any damage to the property that was not pre-existing, the the lessor can send a notice to the tenant and can claim to make good withing three months from receiving the notice.
Illustration: –
A is the tenant and B is the landlord. If and earthquake hits and destructs B’s property, A cannot be held liable as this damage is not caused by A exercise over the property. Case: –
Paritosh Ghosh v. Ashim Kumar Gupta, 2003
The tenant made holes in the walls so that he could fix air coolers in the walls. H also replaced the brass water caps by plastic caps. In this case the tenant was held liable and his eviction from the house was held proper.
- Duty to give notice of encroachment: –
In order to protect the interest of lessor in property, lesse is under obligation to inform the lessor if he gets to know about any proceedings related to the property or any encroachment or any interference in the property. (Section 108B(n))
Illustration: –
If the tenant receives a notice at the demised property to pay the property tax, he must informed the landlord about the same.
- Duty to use the property reasonably: –
The tenant must use the assets and good of the property just like a person of ordinary prudence will. It is also obligatory on the tenant that he must not put the property under any use that is not permissible by the landlord (Section 108B(o))
Illustration: –
A is a doctor and B rented his flat to A. The flat was meant only for the residential purpose and B made it clear to A. But A intended to operate a clinic in the flat and B had no knowledge of it. A started operating his clinic. This is the breach of duty of reasonable use of property as the landlord already made it clear that the property must not be put to any such use.
- Duty not to errect permanent structures: –
The tenant cannot errect permanent structures on landlord’s property. If he does so, he is liable to restore the property to it’s original state that is how it was before such construction. Or is restoration is not possible, then the landlord can offer to buy such structure for the consideration as settled by them. (Section 108B(p))
Illustration: –
A lend his land to B for agricultural purposes but B constructs a whole building on the land. A can either buy that building from B or ask B to destruct such construction.
- Duty to restore possession: –
Once the duration of the lease has ended, the tenant must restore the possession to the landlord. (Section 108B(q)).
Case: –
Sky Land International Pvt.Ltd v. P. Lalwani, Del 594
The court held that on the expiry or termination of lease, the lessee must restore the possession and vacate the property on his own.
Hirabai v. Jivanlal, 1955
The court held that if the lessee wrongfully denies restoring possession to lessor after the expiry of the lease, he is liable to pay the damages to the lessor the extent of it.
State Rent Control Acts: –
Beside the Transfer of Property Act,1882, each state of India has its own rent control act to keep track on rents, eradicate abuse of Tenants by the landlords and vice versa, prevent unjust evictions of tenants, make rules and regulations regarding the rented properties etc. It ensures that the rights of both the tenant and landlord are not exploited and also that both of them abide by their duties and encourages supply properties by ensuring fair returns to landlords.
Here are some examples of rent control acts and the obligations of the tenant and landlord described in them.
- Rajasthan Rent Ceiling Act, 2001
- The tenant must pay the rent before 15th of every month unless otherwise mentioned in the rent agreement. The rent can be. Paid off by any method of choice such as cash, cheque, bank transfer etc. As mutually agreed by the landlord and the tenant.
(Section 5)
- There should be a written rent agreement between the landlord and the tenant. They should communicate mutually the terms and conditions of the rent agreement to the rent authority. No property shall be rented without a rent agreement.
(Section 22(B))
- If, even after the expiry of the agreement, the tenant wants to continue the tenancy then he must convey this to the landlord before expiry of the rent agreement and if acceptable to the landlord, they may form another occupancy agreement.
(Section 22(C))
- After the tenant has vacated the premise, the landlord must refund the security deposit amount, after deducting liabilities of the tenant (if any), within one month.
(Section 22(F))
- In the absence of any express agreement, the tenant must, at his own expenses, make the essential repairs up to 5% of the annual rent. If the expense of the repair exceeds more than 5%, the landlord must make the repairs.
(Section 24(1))
- Maharashtra Rent Control Act,1999
- It is the duty of the landlord to not charge rent in excess of the standard rates as per the act. If the landlord does so, he can be imprisoned up to a period of 3 months or charged a firm of Rs 5000 or both
- The landlord and the tenant should register a written rent agreement under the Registration Act ,1908. It is the responsibility of the landlord to get the agreement registered. In case the landlord fails to do so, he can be punished an imprisonment up to 3 months of charged a fine of Rs 5000 or both.
- The landlord cannot put his residential property to any commercial use. He should not even permit the tenant to do so. If the landlord is found guilty of this, he can be fined Rs 10000 or imprisonment up to 6 months or both.
- It is the duty of the landlord to provide rent receipt to the tenant once the rent payment is cleared. If he refuses to do so he can be charged a fine of Rs100 per default day.
- If the landlord rents his property to his employee, then the period of tenancy will only last till the service period or employment of the employee. Once the service period is completed or the employment ends, the tenant must vacate the property within 30 days from the day of such expiration.
- It is the duty of the landlord to keep his property in habitable condition. If the landlord doesn’t make any necessary repairs or maintenance in reasonable time even after receiving a notice 15 days prior, then the tenant may carry out the same and deduct the expense front the rent provided that such expense should not exceed 7.4% of the annual rent.
- If the landlord wants to renovate of reconstruct or repair his property, then he must fulfil few mandatory conditions like having enough funds, having all required approvals from the concerned local authorities etc.to proceed with such repairs or construction. Also, the landlord must ensure that the both, the units in the new construction as well as the carpet area of it, is same as that of the old construction.
- The landlord must not cut any essential services or supplies like the electricity, water etc.to the tenant.
- It is only after giving a prior notice to the tenant, can a landlord inspect the premise. So, in order to check his property, the landlord must notify the tenant about it and at a reasonable time.
- Uttar Pradesh Regulation of Urban Premises Tenancy Ordinance, 2021
- It is the duty of the tenant and the landlord to notify the rent authorities as and when they are executing the Rent agreement.
- It is the duty of the landlord to not interfere or cut down the supplies of essentials like the water supply, electricity etc.
- The landlord must abide by the standard margin as prescribed in the Ordinance while increasing the rent.
- There must be signed a written rent agreement between the landlord and the tenant before getting in any rental relationship.
- Delhi Rent Control Act,1958
- Rent should be transferred by the tenant to the landlord by 15yh of every month if there’s no written day of payment mentioned in the rent agreement.
- The landlord can only increase the Trent upon renovation of the rented property. And it is the duty of the landlord to follow the terms of the standard hike while increasing the rent and not exceeding 7.5% of the total construction expense.
- Madhya Pradesh Accommodation Control Act,1962
- It is the duty of the landlord to keep the accommodation in good condition.
(Section 37)
- It is also the duty of the landlord that he shall not cut or withhold any essential supplies to the tenant without any just or sufficient cause.
(Section 38)
In the case of Ninad Kailas Shah V. Ramanuj Badrinarayan Daga , issue raised was whether a landlord had the jurisdiction to obstruct the tenant from carrying out any maintenance or repairs to the premises to which the it was held that , the landlord should keep the premises in a good and habitable condition under section 14 of the Maharastra Rent Control Act and that if the landlord fails to make any necessary repairs, the tenant can do so and cut the expense front the rent provided the expense must not exceed 7.4% of the annual rent.
Some more duties of the landlord and tenant: –
- It is also on the landlord to make necessary repairs and maintenance to the property for example maintenance of hot water supply, repairs of sinks, basins etc.
- The landlord must also periodically check the safety and security of his property.
- If the landlord wants to have any repairs or maintenance in his property, say for example if he wants his flat that is rented by a tenant to be painted, that requires vacating the property then the landlord needs notify the tenant well in advance by the means of notice before hand. The notice must be sent at least before 15 days from the actual day when the repair of maintenance is to be done.
- After the tenant had received such notice, he is liable to vacant the property.
- Before evicting the tenant, the landlord must notify the tenant one month advance. The tenant then must vacant the property in the period mentioned in the notice. A landlord, before the expiry of rent agreement or so, cannot evict the tenant without a just cause and a notice in advance.
References: –
Transfer of Property Act ,1882
Maharashtra Rent Control Act,1999
Uttar Pradesh Regulation of Urban Premises Tenancy Ordinance,2021
Delhi Rent Control Act,1958
Rajasthan Rent Ceiling Act,2001
M.P Accommodation Control Act, 1962
www.livelaw.in
