PROPERTY LEGAL HELP

 Property law is the area of law that governs the various form of ownership and tenancy in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate or real property, and the associated rights and obligations thereon.

Even with the application of the Lease and License Agreement system, it is still difficult for a landlord to protect his property from unwanted overstaying tenants. Even if contracts are enforceable in courts, the actual enforcement takes years or decades to accomplish.

In India, Lease Agreements are covered by rent control laws. A Lease (or Rental) Agreement is covered by restrictive rent control laws. The amount of rent that can be charged is based on a formula devised by the local executive, legislative or judicial government, as the case maybe. For Delhi, the maximum annual rent is 10% of the cost of construction and the market price of the land, but the cost of construction and the price of land are both based on historical values and not the current market valuation. So the older your property, the smaller the rent you can charge. Rents can only be increased by a fraction of the actual cost the landlord has incurred in improving the property.

The Lease Agreement transfers the right of ownership to the tenant for an indefinite period of time, which can be problematic because it encourages the tenant to claim the right to permanent occupation. In numerous cases, tenants have refused to relocate. When brought to court, these cases can take 10 to 20 years to resolve.

Most landlords prefer a Lease and License Agreement. This agreement only grants the tenant a license to occupy the property for a period of 11 months, with an option for periodic renewal. Because the rent control laws (which are largely in favor of tenants) only apply for lease agreements of at least 12 months, establishing an 11-month agreement serves as a pre-emptive measure.

What inheritance laws apply in India?

No uniform codified inheritance laws apply in India.

The Constitution of India provides freedom of conscience (i.e., religious faith as a fundamental right). Family law has always been a part of religious law. This means that no uniform code for civil law exists in India, even though it has been put into the Directive Principles of State Policy of the Constitution of India. Since laws of marriage and succession are the most intricate amongst the religious laws, inheritance issues in India are very complicated.

The main laws pertaining to issues related to succession and inheritance by foreigners in India are: The Foreigners’ Act (provision for the government to make orders restricting or prohibiting rights of a foreign citizen) and The Foreign Exchange and Management Act (Acquisition and Transfer of Immovable Property in India).

Different religious groups in India subscribe to different laws. Hindus have their own codified law (Hindu Succession Act) as well as a part uncodified, Muslims have their own textual law of inheritance (Islamic Law on Succession), Parsees come under the Indian Succession Act, as do Christians, as well as others (e.g. spouses with different religions married under The Indian Marriage Act).

The personal law to which the deceased person subscribed applies to matters of inheritance in India. This law may be the textual law of the deceased’s religion, or the codified law of the nation to which the deceased belonged to at the time of death.

If a foreign citizen inherits from a deceased Indian citizen, then the law prescribed for the appropriate Indian religious group applies.

If the deceased was a foreign citizen, then the personal law of his religion or nationality applies. In the instance where the law of the nation to which the deceased foreigner belonged to at the time of death refers the inheritance issues back to India (i.e. place where his/her property is situated), then the applicable law which governs the inheritance of the deceased in India takes precedence.

Only Muslim inheritance laws have a reserved portion in India.

Except for the Muslim laws of inheritance, which require at least 2/3 of the deceased’s property to be inherited by the line of succession and allow up to 1/3 to be settled by testamentary succession, India’s other inheritance laws do not have any reserved portion, i.e. the entire property may be subject to testamentary succession or intestate succession if there is no will.

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