• Received notice from my landlord of non occupancy

I had Purchased a Residential Pagadi(Tenent) property in my name of 450 Sqft in May 2011 for premium of Rs 14 Lac(Via Chq) & paid Rs 1.4 Lakh (Via Chq) to Landlord who was also confirming party. All documents were Registered & Stamp duty was paid on 450 Sqft.
2 Months later we got a Letter which is Notorised by Landlord giving us permission to use the said Room for Godown, Shop, Commercial purpose. Montly Rent Charged was also Increased from 
Rs 290 to Rs 450 & 3 Months rent receipt was issued with commercial rent of Rs 450. Iniatially the Room was used for commercial purpose for 3.5 to 4 Yrs.
 Soon(June 2011) after we purchased the room Old landlord sold the Landlordship to a Builder Cum developer.
Building is in very Bad conditions for which Landlord has given many Letters to tenents, BMC, Fire department & Many other concerned department. 
*BMC has also written to all tenents 2 months back saying that building is unsafe to stay & has informed tenents to pull down the building after 30 days.*
Since building is going in Redevelopement & Condition is Not like staying/Using, We are Not using it from Last 2.5 to 3 Yrs.(We hardly open it Just to clean)
Now the Landlord(Developer) went to Court & has served Notice to 4 tenents in Building including us that our House is Unoccupied from 2009(We purchased in May 2011 before which the tenent used to stay there) with 0 Unit electric consumption & that we have taken/Shifted to alternate place to stay. He has falsely written in his letter to court that our house was only 280 Sqft & we made it to 450 Sqft by encroaching outside comman area and we have damage the building structure.(Fact is we have Not encroch a single sqft & our house was of 450 in May 2011 as confirm by BMC in assesment bill & also by Landlord).
I'm on Wheelchair from last 16 Years & 1 of the reason for Not using that Room is that access for me is very difficult looking at the condition of building(As said by BMC & Landlord) & that the landlord was saying from beginning that soon he is going to start the construction work so i did not do much work inside the house.
Montly Rent paid by me(all via chq) & all other tenents is till Feb 2018. 
Landlord has Not collected rent from anyone after that.
I have 1 ownership flat in my name on which there is an outstanding loan of 1.20 Cr as on today, apart from this Room.

Questions.
1) What would be the possible outcome against us In Hon Court.
2)Please suggest us our Next Step & Obliged.
Asked 4 years ago in Property Law
Religion: Muslim

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13 Answers

1) engage a lawyer and file detailed reply denying all allegations made in suit

2) enclose copy of letter from BMC that building is unsafe to stay & has informed tenents to pull down the building after 30 days

3) deny that house un occupied since 2009 mention that you purchased premises in 2011 Landlord gave you permission to use the said Room for Godown, Shop, Commercial purpose.

4)deny that you have increased area of house to 450 squre feet. enclose BMC assessment bill which reflects your area

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

1. have you received summons to file your written statement?

2. are you served with the plaint papers?

3. have you filed any written statement?

4. has the new landlord adverted to the registered document by which the 450 sq.ft. premises was sold to you by earlier landlord?

5. has he referred to the letter of earlier landlord permitting you to use the premises for commercial purposes?

6. has the premises been re-assessed by BMC for being used for commercial purpose and thus being liable for payment of increased property taxes?

7. does the inspection extract of the BMC state the area of your premises as 450 sq.ft.?

8. has landlord informed in his plaint that BMC has issued an eviction notice to tenants due to the dilapidated condition of the building?

9. if landlord plaintiff has not disclosed any of the above facts that means he has suppressed vital and material facts from the court and has approached court with unclean hands only to lay an illegal claim on your premises and to oust you therefrom somehow

10. have you attempted to pay the rent after feb 2018 by other modes like money order? if not then at the first hearing you must tell court that you are ready to pay the arrears of rent which the landlord illegally refused to accept from you

Yusuf Rampurawala
Advocate, Mumbai
6878 Answers
79 Consultations

5.0 on 5.0

your is case is complicated please approach to any advocate with all document.

Mohammed Mujeeb
Advocate, Hyderabad
19029 Answers
32 Consultations

4.5 on 5.0

Suit for eviction would be dismissed after trial

2) suit would take 10 years to be disposed of

3) contact Lawyer practising in small causes court in Bombay

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

when did the BMC issued the eviction notice?

since how long are you unable to use the premises due to dilapidated condition of the building?

occupying the tenanted premises for the purpose for which it is let does not mean that the tenant has to occupy it 24x7

it should not be closed for more than 6 months. If it is closed and unused for more than 6 months then the landlord can take the ground that the premises is not being used for the purpose for which it was let out to tenant

however if the premises is in such a state that the tenant is not able to use due to fear of loss of life or limb due to dilapidated condition of the building, then landlord has no business to compel the tenant to occupy the premises and risk his life in the event the building suddenly collapses

the understanding for use of the premises for commercial purpose was between you and the earlier landlord - as no reassessment for revised property tax on account of change of user from residential to commercial was done by the BMC, you no more have the permission to use the premises for commercial purpose - and the user will remain residential only - however you need not worry about this because landlord has not taken this ground of change of user against you for your eviction

as landlord has not disclosed any plausible cause of action, i suggest you taken out a notice of motion for rejection of landlord's plaint on the ground that no cause of action is disclosed - non user is not a cause of action available to landlord because the premises in the first place has become uninhabitable due to dilapidated condition of the building

however you should fil your written statement stating all these facts, on a without prejudice basis. That is without prejudice to the outcome of your notice of motion/application for rejection of plaint

Yusuf Rampurawala
Advocate, Mumbai
6878 Answers
79 Consultations

5.0 on 5.0

All commitments , permission made / given by old landlord binding in new landlord

2) if you surrender tenancy rights or sell you woukd be entitled to around 70 per cent of sale consideration

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

1. tenancy is a valuable right

2. landlord cannot evict you at his whims and fancies and whenever he wishes to

3. he can only evict you on the limited grounds available to a landlord under the rent act

4. those grounds too have to be justified by the landlord by cogent evidence when the suit goes for trial

5. if you want to settle the matter with the landlord then consider that the premises will be demolished and in lieu of old premises, the tenant would become entitled to new flat in the future, if the tenancy of the tenant is not terminated and your tenancy is sustained and upheld by the court

6. so you have to consider the cost of the future asset which would be allotted to you in lieu of your old premises and accordingly claim compensation from the landlord

7. though its nowhere stated in the rent act, the custom in Mumbai is that the landlord charges 33% for any new transfer

8. so you can estimate the cost of the new asset and deduct 33% from that amount towards the transfer fee of landlord and balance can be claimed as a compensation from the landlord

9. as regards the personal understanding of using the premises for commercial purpose between you and old landlord, that understanding no more applies to the new landlord

10. however had the user of the premises been changed from residential to commercial in the BMC records, then the new landlord would be bound by it

Yusuf Rampurawala
Advocate, Mumbai
6878 Answers
79 Consultations

5.0 on 5.0

) What would be the possible outcome against us In Hon Court.

2)Please suggest us our Next Step & Obliged.

Basically you are a tenant in the property and not the owner hence you cannot say that you have purchased the pagdi system property.

However since you have entered into a registered rental agreement with the owner, you are protected by tenancy rights.

If the landlord has filed an eviction suit on the basis of non-occupancy, you may fight it out with documentary evidences and challenge his claim as false.

you hav to properly follow the cae in the trial proceedings without any lapse from your side.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

Questions.

1) What would be the possible outcome against us In Hon Court.

Since the case has just been filed and you are yet to appear with your reply, you may just watch the developments.

You can get a judgment in your favor provided you fight it out properly witht eh support of substantial documentary evidences in your side.

2)Please suggest us our Next Step & Obliged.

Since the matter is pending before court, you may have to contest and challenge the case properly.

3)Will unoccupency of this Room go against us in Hon Court as I'm on Wheelchair since Last 16 Years.

The non-occupancy of the flat may not be a great cause of concern if you have proofs that you have been paying the monthly rental amount properly and regularly.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

1)We had given 14 Lakh in 2011 to old tenant & 1.4 to Landlord, both Via Cheque.

Can new landlord now vacates us without giveing any premium???

The 1.4 Lakhs amount given to th previous owner can be sought from the new owner.

2)Are all the things/commitments/permission in writing of Old Landlord binding on New Landlord??

Yes, the new landlord has to pay the deposit amount to the tenants if they are vacating.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

agreement between landlord and tenants should be registered

2) landlord can issue you notice for non occupancy

3) landlord can evict you for redevelopment if he has 51% consent for redevelopment

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

1. The first step taken by your landlord to nullify your tenancy is this notice, you may have tio issue a reply notice denying his allegations.

2. Yes, he is the landlord, he can very well issue a legal notice.

However you can defend your interests by giving a reply notice denying his allegations.You can justify your reasons and advise him to drop the plans to approach court on this if not it will be challenged properly on merits.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

he does not want to recognise you as tenant

so that he does not have to give you any new flat in the new building

you will have to challenge his claims in court

Yusuf Rampurawala
Advocate, Mumbai
6878 Answers
79 Consultations

5.0 on 5.0

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