How To Deal With Encroachment On Your Property

The Supreme Court (SC), civic authorities as well as the Special Task Force (STF) is going heavy on illegal construction and structures across Delhi. Encroachments in other parts of the country are also being meted out the same treatment. Many a time, such encroachments would be happening around you, close to your property or sometimes even in your property. What should you do as an individual owner?

What is an encroachment?

An encroachment may or may not be too difficult to notice. Usually, when another person puts up a structure that encroaches your property/land in any way, it is called encroachment. Some common examples may include someone renovating their house in a way that some part of his property partially or fully covers your property like a balcony that extends into your area or someone encroaching your parking space which you may have bought. At times, you may not bother about it till it is too late or you might feel that it may be a temporary adjustment and that you shouldn’t be burning your bridge with the neighbour. What could go wrong with your assumption is the fact that if and when you wish to sell your property, the temporary adjustment may have become a permanent arrangement and your neighbour or the encroacher may not wish to let go the comfort.

What can you do?

The best way to deal with the situation is to talk it out. Before you do this, ascertain that the property you want to talk about is yours and that you haven't been assuming it is all the while. Carry the proof (property papers) with you. Try to put across the point amicably. You may be able to sort out the issues out of court that will save you both some legal fees or you may be able to make an alternate arrangement. For example, a written permission to use your property will be proof enough that it is your property and it is an arrangement between both parties. In future, you wouldn’t have to battle out a case of adverse possession by the encroacher. You could also decide to sell the property to the encroacher so that you get your encroached property’s worth.

The legal way out

Do note that if you are planning to sell, you must do this the legal way. Your home loan provider will be able to make sure that the land records is up to date. A lawyer’s services should also be useful who can make documents stating that your property had been encroached. This is often called the ‘quiet title’ action. If you do not want to sell the property, an ‘ejectment action’ can be taken which means you want the encroacher out of your property. The matter often reaches the court and either your neighbour would be tried for adverse possession or the court may grant him limited use of the property, often called prescriptive easement.

How law treats encroachment?

• The same law applies upon encroachment as that of trespassing on private land. Trespass is an offence under the Section 442 of the Indian Penal Code as well as the Law of Torts.
• Trespass is of three kinds – of person (when the rightful owner is restricted from doing what he could previously do), of chattel (when a person disturbs the rightful owner by using the movable property of the owner) and of property or land.
• The judiciary may decide to pass an order of injunction to either stop or restrain the encroacher. This could be temporary or permanent.
• The Court may also ask the encroacher to give the damages or in other words compensation for the encroachment. This is calculated on the present value of the land and estimating the proportion of loss caused.
• If you see an encroachment and want to proceed the legal way, you should approach the court for an order of injunction as per Order 39 (rules 1, 2 and 3) and claim the damages.