• Is rent payable if Residents Association blocks shifting of tenant?

I have taken a 3BHK apartment on lease for 5 years with 6 months lock in period. I have paid INR 2.52 lakhs as security deposit and my monthly rent is Rs 42000. However the Residents welfare association is not allowing me to shift into the rented apartment due to COVID lockdown. The landlord is also not diligently following up on the same and is continuing to demand rent. I have paid the rent for Mar, April and May 2020 hoping that I can shift soon. But the RWA is not relenting. Can the landlord still charge me monthly rent? Also I have paid rent for 3 months can I get refund for the same. If matters become worse can i serve notice under force majure without serving the mandatory 6 months lock in period and recover my security deposit.
Asked 8 months ago in Property Law
Religion: Hindu

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22 Answers

Landlord cannot charge you rentals as you have not been given possession of premises 

 

2) seek refund of rentals as association has failed to permit you to take possession of premises 

 

3) since possession ha snot been delivered lock in period would not be applicable 

Ajay Sethi
Advocate, Mumbai
80564 Answers
4945 Consultations

5.0 on 5.0

1. If there is no such restrictions imposed by the local authority or government then the society has no power to stop you from taking possession.

2. So you can take help of the police and enter into the flat.

3. Now if you do not want to do this then your liablity to pay rent would start from the date when your landlord ensures your free entry into the flat and not before. 

4. Force majure clause if for suspension for rent and not for termination of it. 

Devajyoti Barman
Advocate, Kolkata
22032 Answers
325 Consultations

5.0 on 5.0

It was responsibility of land lord to hand over the possession and shift in it. If RWA is not permitting to enter than this is land lord look out.

You wasted 3 months rent, rent was payable only from the date you start living in the flat and this was responsibility of landlord.

FM never existed as tenancy never started. Send notice for recovery to full rent or adjust with future rent after possession delivered to you. Or recovery of security deposit and rent due to failure of land lord to proved you ready to shift and use flat.

RWA objection is concern of LL and not of tenant.

Yogendra Singh Rajawat
Advocate, Jaipur
21422 Answers
31 Consultations

4.4 on 5.0

Sir

you can not be charged for the time you have not been handed over the possession, it is the duty of the the landlord to let you in and if some how he is unable to do so, you are liable to get the rent for 3 months refunded and you can serve the notice under force majure under these circumstances. 

Archit Vasudeva
Advocate, New Delhi
260 Answers
1 Consultation

5.0 on 5.0

1) delay was on your part in shifting to rented premises 

 

2) anyhow claim waiver of rent as you have not got possession of premises 

Ajay Sethi
Advocate, Mumbai
80564 Answers
4945 Consultations

5.0 on 5.0

- As per Section 105 of the Transfer of Property Act ,a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

- Hence, as per this definition, it is clear that one of the essential ingredients of lease, is, an interest in the subject property is to be created in favour of the ‘lessee/tenant’ by the ‘lessor.

- Since the possession is not given by the owner to you , i.e. the Resident welfare association not allowed you to shift into the tenanted premises , hence legally the landlord cannot take rent from you for any month ,  as the actual possession to of the tenanted premises is not give to you , even due to lockdown etc. 

- Hence, you are not liable to pay the  rent for the month of even March to May as well, due non-possession the tenanted premises, and the landlord under obligation to refund the same to you the deposited amount. 

- Further, every tenant has a right to enjoy peaceful possession of the property without any disturbance or encumbrance from anyone including the owner, and at no point of time under your tenancy, your landlord ask you to evict or leave the premises without assigning a valid reason, and both the parties are bond with the clauses mentioned in the contract agreement. 

- You are not responsible for the delay in possession due to lockdown , the landlord is accountable for the same , and he will have to bear the same , as after executing a lease deed , physical possession of the tenanted premises not given to you. and in the absence of actual possession , the agreement having no value in the eye of law. 

Mohammed Shahzad
Advocate, Delhi
5973 Answers
60 Consultations

5.0 on 5.0

- if the possession was already given to you , i.e you locked the door of the tenanted premises with your key , then landlord is not responsible for lockdown. 

Mohammed Shahzad
Advocate, Delhi
5973 Answers
60 Consultations

5.0 on 5.0

Thing is same and why you admit, you could have shift in the flat. Keep your case, landlord unable to deliver you possession due to RWA objection.

Yogendra Singh Rajawat
Advocate, Jaipur
21422 Answers
31 Consultations

4.4 on 5.0

kindly clarify by permission what do u mean, did u have the keys in your hand, if yes then the fault is yours but you can stil try and claim waiver of rent for 3 months. 

Archit Vasudeva
Advocate, New Delhi
260 Answers
1 Consultation

5.0 on 5.0

Covid-19 is a issue attached with life risk. It is declared as pandemic by govt.  All normal rules to the extent it goes contrary to the pandemic issues are subject to become inoperative till pandemic issue exists or govt revokes particular restrictions. 

So amid covid-19 movements of people was totally banned.  Recently this lock down is lifted by govt except in few places. 

So association was right in not allowing any outsider into their complex. 

It is not the fault of the owner nor the association and also not of your. 

The terms of agreement of rent is not affected by this pandemic effect.  Schedule and Payment can only be deferred up-to a reasonable period. 

 

Kallol Majumdar
Advocate, Kolkata
2792 Answers
4 Consultations

5.0 on 5.0

You serve him with the notice of force majeure and ask for the refund of April and May rent.

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

Yes , my reply stands same. 

Devajyoti Barman
Advocate, Kolkata
22032 Answers
325 Consultations

5.0 on 5.0

Yes you can stop rent or adjust rent till the situation gets normalized as well as you can terminate the agreement. The society also cannot stop you from shifting you can complaint to police. Now the lockdown too is relaxed. If you are not covid positive you can shift. The RWA of many societies are making their own rules against the govt guidelines. The police and corporation should take action against them. You can terminate the agreement as well as seek compensation from the landlord

Prashant Nayak
Advocate, Mumbai
23004 Answers
49 Consultations

4.4 on 5.0

I don't think the landlord woukd be able to do anything if the RWA's are not cooperating. Although they cannot block your access to the flat the landlord is not entitled to either the rent or anything else. He should have made sure that you would get entry. Therefore don't give any money to him. Go and meet him and tell him to come and resolve the situation.

If he doesn't file a case for recovery of money.

Also file a criminal complaint.

Rahul Mishra
Advocate, Lucknow
11797 Answers
25 Consultations

5.0 on 5.0

You can invoke the doctrine of frustration and impossibility of performance under a. 56 of contract act

By the above you can terminate the contract and seek refund of your deposit

You were never put in possession of the premises

So you can also claim refund of the 3 months rents you paid

The landlord cannot charge license fees from when you do not even have the possession 

The owner must ideally have approached the local police for a written permission allowing you to shift

But it is doubtful if the police will give such permission 

In such a case the owner is then required to move the High Court by filing a writ petition and seek direction from court

Since there was initial permission to shift and later due to lockdown and society's objections, you are unable to shift, then you are not required to pay any rent. 

The landlord cannot just accept rent from you without possession and do nothing. It is unjust enrichment 

 

 

Yusuf Rampurawala
Advocate, Mumbai
5916 Answers
43 Consultations

5.0 on 5.0

This is my response to you:

1. You cannot be forced to pay rent;

2. You may have read the recent high court judgments;

3. The RWA also has no jurisdiction to deny you access to your house, provided you complete 14 days home quarantine and are declared medically fit;

4. Consult a local lawyer and take steps.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

This is not force majeure situation in your case.

The landlord is supposed to deliver vacant possession to you, he cannot remain idle in a remote place after collecting the rent and the security deposit for this lease agreement.

You talk to the landlord and ask him to either deliver vacant possession of the rented premise by talking to the association or to refund the deposit ad the rental amount collected by him so far with interest.

If the owner is not cooperating then you may file a suit for recovery of your money for the same reason that he has not handed over possession even after three months or entering into the lease agreement.

 

 

T Kalaiselvan
Advocate, Vellore
70617 Answers
986 Consultations

5.0 on 5.0

The landlord has to ensure that you are occupying the rented premises without any problems from outside sources for no fault of yours.

If he is not able to make sure that you occupy the rented premise peacefully, then he is not eligible to collect the monthly rental amount.

 

 

T Kalaiselvan
Advocate, Vellore
70617 Answers
986 Consultations

5.0 on 5.0

where a tenant is not in possession under a lease from the landlord then tenant is not liable to pay rent. 

adjustment shall be calculated as per mutual understanding between landlord and tenant. 

Lock-in clause says that tenant cannot leave rented property before specified period. if there is no possession of premises lock-in period would not be Applicable. 

 

 

Mohammed Mujeeb
Advocate, Hyderabad
18991 Answers
15 Consultations

4.5 on 5.0

Please note it is necessary to look into the documents to provide proper guidance in case if the lease agreement is silent about force majeure clause Or not, its advisable to share the lease agreement. 


Please note it is necessary to look into the documents to provide proper guidance in case if the lease agreement is silent about force majeure clause Or not, its advisable to share the lease agreement. 

Mohammed Mujeeb
Advocate, Hyderabad
18991 Answers
15 Consultations

4.5 on 5.0

1. No landlord cannot charge rent until you take possession of premises and you are not liable to pay rent of period when RWA is not allowing you to shift at the apartment.

2. It's duty of landlord to get permission from RWA so he cannot demand rent until you shift in that apartment.

3. You can get refund of rent paid along with security deposit but you have to cancel the agreement by sending notice for cancellation and demanding refund of security deposits along with rent paid for three months without taking possession.

4. If he refuse to return the money then file suit for recovery against landlord.

Mohit Kapoor
Advocate, Rohtak
10685 Answers
7 Consultations

5.0 on 5.0

1. Lockdown is a Force Majeure, hence you can claim that you are not liable to pay the rent as possession could not be delivered to you due to lockdown which is a force majeure.

2. Write a letter to the landlord and demand that he should adjust the paid rent against the future rent for 3 months as possession could not be taken due to lockdown.

3. If RWA is not letting you to enter the premises and take the possession then give a complaint to police, and if police also does not help then you may file a writ petition in the High Court.

Ashish Davessar
Advocate, Jaipur
30295 Answers
880 Consultations

5.0 on 5.0

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