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A legal notice for land encroachment is a warning before any legal action is taken. Thus, a legal notice for encroachment in India should not be taken lightly.
In India, buying property especially vacant land or house is considered as one of the best modes of investment. Indians invest their life savings for buying a house/plot/land with the hope of getting a hefty return. From time to time, the real estate market witnesses a rapid boom. Thereby, resulting in a lot of people investing in properties in India.
Although property appear as a good investment option, it does bring some risk with it.
Nowadays, there have been a lot of incidents of encroachment in the news. In many cities, where property development and real estate projects are going on, a notorious group of criminals known as “Land Mafia” are on the rise.
These Land Mafias target those land or properties which are vacant or unused for a long time. The owner of these properties live in different cities or are NRIs (Non-Residents of India).
The Land Mafias either do illegal construction over the land or take illegal possession over the vacant dwelling house.
If anyone does so, the owners can send him a legal notice for land encroachment. A legal notice is sent under the land encroachment act either by an individual owner or by owners of a property.
According to the law, when one or a group of people illegally construct over anyone else's property or take physical possession without any lawful right, title or interest, then it is called encroachment.
The definition of encroachment according to the Oxford Dictionary is “intrusion on a person's territory, rights, etc.” However, encroachment legal definition is different, which can be explained in the following way:
It means when one or a group of people illegally construct over anyone's property or take physical possession without any lawful right, title or interest.
An encroachment can be in private land and in public or government land.
If encroachment is in public or Government land, then it’s seen as a "Civil Wrong under the principle of the Law of Torts".
On the other hand, in India, if the encroachment is in anyone's private property, then the remedy is available under both Civil and Criminal laws.
According to the Indian Penal Code, the act of encroachment comes under the purview of Trespass.
Section 441 of the Indian Penal Code defines “Criminal Trespass” and Section 447 of the Indian Penal Code states the punishment for criminal trespass.
It’s mentioned in Section 447 that the maximum punishment for criminal trespass is imprisonment of three months or fine of Rs. 500, or both. This offence is cognizable, meaning the police can take action against the accused on the basis of a complaint. It's a bailable offence according to IPC.
When can you send a Legal Notice for Encroachment?
It can be your neighbour who either knowingly or unknowingly, has encroached your land. In such a case, you can send a letter to the neighbour for fence encroachment. This is one common scenario that we in general face. Usually, one can send a legal notice for encroachment in India in the below-mentioned scenario:
When a person or group of people are illegally trespassing or invading someone else's space/land, then the owner can send a legal notice for encroachment.
Sometimes out of love and affection, people let others use their house or flat without any proper documentation. But, over the time those people capture the house and dispossess the true owner. The victim can send a legal notice and start a legal procedure for land encroachment to the people who are enjoying the possession illegally. Also, to avoid such cases, you can find many sample encroachment agreements here.
In several cases, it has been seen that if a property or a piece of land is not properly demarcated with fence or boundary wall, the owners of adjacent land gradually encroach the land. In such case also, the victim should immediately put a stop by sending a legal notice for land encroachment to the culprits.
Also, in the above-mentioned case scenario, the matter should be informed to the Land Record Office of Government and the land should be physically measured by a government-registered Surveyor.
Measures you should take to avoid Encroachment
You should take a few steps as preventive measures against encroachment. Your concerned steps and awareness will not only avoid encroachment but also put you in a better position in the legal fight.
You should keep all the essential documents related to the property in your custody. The documents are:
registered deed of conveyance,
Agreement to sale,
Municipality or Corporation Tax bill,
electricity bills, water bills and telephone bills.
If it's an inherited property then keep the will, probate or death certificate of the ancestor. All these documents are essential to prove your ownership.
The preventive measures to deal with encroachment are as follows:
You should keep your name up-to-date in all documents.
Sometimes people buy a property, but to save the stamp duty they don’t complete the registration. Some don’t even change the name in the mutation certificate. Make sure you avoid this
You must keep all ownership-related documents updated.
You should pay all the taxes and government fees regularly.
Keep in touch with the neighbour and keep a good relationship with them; as they can inform you about any suspicious activity at your premises.
You should register a Deed of Boundary Declaration before the concerned Registration office. This legal notice acts as a boundary dispute letter before action to take place.
Put a high and concrete boundary wall.
To get a sample of legal notice for encroachment in pdf format, you can visit here. But, it's advisable not to blindly trust them. Since every case is different from another, based on the situation related to it and only a lawyer can suggest you the best way to deal with it.
Thus, while drafting the notice there are certain essential points to be kept in mind, such as:
Name, description, and place of residence of all the people who had committed the encroachment.
Name, description, and place of residence of the sender of the notice.
The detailed description of the property which has been encroached.
Details of the cause of action.
The relief claimed by the sender of the notice.
In case of illegal property encroachment, the ways on how to resolve an encroachment include sending a legal notice for your right over that property. Therefore, the following laws mainly govern its relief:
Civil Procedure Code 1908 (CPC)
Indian Penal Code 1860 (IPC)
After the expiry of the notice period, depending on the value of the suit property, you can file a Title Suit and a Suit for Permanent Injunction either before:
the Court of Civil Judge Junior Division, or
the Court of Civil Judge Senior Division, or
Many times getting an injunction order in your favour at the prima facie stage depends on the submission and court crafting of the Advocate who is moving your case before the Judge.
What is encroachment of property?
Encroachment is a situation in real estate where a property owner violates the property rights of his neighbour by building on or extending a structure to the neighbor's land or property.
How do you resolve an encroachment?
Some of the common ways to deal with encroachments are: Have a professional land survey done. A professional land survey should always be the first step toward assessing if there is any potential boundary or encroachment issue. Try to reach out to an agreement by talking it out Use a mediator or hire a neutral third party If all else fails, hire a qualified real estate attorney to file a lawsuit
Can you sell a property with an encroachment?
If you ever want to sell your property, you will need to disclose the encroachment to any potential buyers so that they can consider the issue as part of their purchasing decision.
What is the difference between an encroachment and an easement?
An encroachment is the right to use someone else's land for a designated purpose. Whereas, encroachment is an unauthorised entry upon another's land.
What is Adverse Possession? Can someone claim your land if they use it?
If you have been occupying lands that you do not own/rent or otherwise have permission to use in excess of 12 years without any objection from the registered owner, you can claim the land to be yours. This is known as Adverse Possession.
Where can I file a complaint against encroachment?
you can make a complaint to your local municipality against the person for making encroachment and damaging your property. You can also file a police complaint against him (under the MRTP Act) and the persons who are making the construction.
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Antim Amlan is the in-house corporate counsel for MyAdvo and has been associated since the inception of the legal team.
Antim is a graduate from National Law University Odisha and has the expertise of consulting several corporates on litigation strategies, due diligence projects, regulatory compliance & licensing. He also advises corporates on structuring of the work processes based on subject matter and curating suitable legal solutions that benefit the corporate clients. He is an avid blogger and has interest in Corporate, Banking and Finance laws.