Notice to evict sub-tenant under Drafting , Pleading and Conveyancing

1. Table of Contents
What is Notice of Eviction?.................................................................................................................3
Who is landlord................................................................................................................................3
Who is Tenant..................................................................................................................................3
When Notice for an eviction be most needed..................................................................................4
Reasons for Evictions......................................................................................................................4
Rights related to tenancy under India...................................................................................................5
Rights related to landlord.................................................................................................................5
Rights related to Tenants..................................................................................................................6
Sub-letting in India..........................................................................................................................7
Sub-letting in US.............................................................................................................................8
Draft of Notice for Eviction of Sub-tenancy to Tenants.......................................................................9

2. What is Notice of Eviction?
As a landlord, one may need to evict a tenant for one reason or another. Generally considered the
first step in the process, an Eviction Notice tells tenants to vacate the property. Using an Eviction
Notice helps ensure that the process goes smoothly so that both landlord and tenants can move on,
while also establishing a record of eviction attempts in case landlord need to pursue further legal
action.
An eviction notice is required by law only in cases where there is no agreement between landlord
and tenant about termination of the tenancy. If a landlord wants the tenant to move out and the
tenant agrees, an agreement to end the tenancy is a more appropriate document than the eviction
notice. If either party does not follow its terms, the agreement can be enforced by way of
application to the Landlord and Tenant Board.
An eviction notice does not, by itself, secure the eviction of the tenant.It is a document which a
landlord must give the tenant before an eviction application is filed with the Landlord and Tenant
Board.
Who is landlord
According to Section 2(c) of Rajasthan Rent Control Act, 2001 landlord means any person who
for the time being is receiving or is entitled to receive the rent of any premises, whether on
his own account or as an agent, trustee, guardian or receiver for any other person, or who
would so receive or be entitled to receive the rent, if the premises were let to a tenant;
Who is Tenant
According to Section 2 (i) of Rajasthan Rent Control Act, 2001 tenant means:
(i) the person by whom or on whose account or behalf rent is, or but for a contract express or
implied, would be payable fur any premises to his landlord including the person who is continuing
in its possession after the termination of his tenancy otherwise than by an order or decree for
eviction passed under the provisions of this Act; and
(ii) in the event of death of the person referred to in Sub-clause (i),-
(a) in case of premises let out for residential purposes, his surviving spouse, son, daughter, mother
and father who had been ordinarily residing with him in such premises as member of his family
upto his death :

3. (b) in case of premises let out for commercial or business purposes, his surviving spouse, son,
daughter, mother and lather who had been ordinarily carrying on business with him in such premise,
as member of his family upto his death; and
When Notice for an eviction be most needed
1. As a landlord, you want to terminate the tenancy and remove the current tenant(s) from your
property.
2. When a landlord own or manage a rental property, and want your tenants to either remedy
their violation of a lease provision, or move out.
Reasons for Evictions
Rent not paid
This is one of the most common reasons for tenant eviction. A landlord can do with a delay of a
month or two, depending on the duration for which the tenant has been living in the property. But,
in case your tenant is skipping the rent for a long time now, it is time to let them go.
Sub-letting
You rented a property to two, but, your tenant ended up adding two more tenants to the property and
started taking rent from them. This is serious, either ask them to put an end to this or be prepared to
evict.
Damaging the property
In case the tenant has seriously damaged the property and is unwilling to pay for the damages, you
have the right to evict them.
Self-use
In case you, as a landlord, want to take back the property for personal use, you could do so by
sending an eviction notice to your tenant.

4. Commercial use
In case your tenant is using the residential property to run a business of their own from the
premises, this can call for an eviction. Commercial use of a residential property could lead you to
trouble, too.
Rights related to tenancy under India
Rights related to landlord
Right to evict a tenant
With the Rent Control Act applicable only to a tenancy of over 12 months, things seemed tougher
for landlords to evict tenants living in the property for years. The Draft Model Tenancy Act 2015,
which has been in the news recently, aims to make things easier for landlords as well as tenants by
addressing untimely eviction, repossession issues as well as mutually fixing and revising the rent.
Laws now allow landlords the right to evict a tenant on the grounds of breach of rental agreement;
subletting rented premises or a part of it without landlord’s permission; default in payment of rent
for specified period; misuse of the property, or conducting illegal activities in the rented premises.
The landlord also has a right to evict a tenant if he or she requires the building for his or her own
occupation.
To prevent tenants from overstaying, landlords can also add a clause of hike in rent in the
agreement, if the tenant does not leave when the contract ends.
Right to temporary recovery of possession
A landlord is entitled to obtain possession of the property, in case there is a requirement for him to
carry out repairs, alterations or additions to the building, which cannot be carried out without the
building being vacated, after which the building will again be offered to the tenant. Or, if the rented
accommodation has become unsafe for habitation and cannot be refurbished without being vacated,
the landlord is entitled to get possession of the property.
Right to increase the rent
Regulations allow landlords to have an upper hand as far as the collection of rent is concerned.
Owners of residential or commercial properties not only have a right to charge rent at market rates
from their tenants for taking the premises but also to raise the rent periodically. The Draft Model
Tenancy Act is instrumental in creating a balance by bringing the urban rented accommodations
under the purview of the formal housing sector. The Act clearly specifies the period, inheritance,

5. rents payable as well as the obligations of landlord and tenants. In India, the applicable rate of rent
increase is around 10 per cent, every two years, for residential properties. But, mostly, there are
laws governing this too. For instance, the landlords in Delhi can increase rent only as per Section 6
& 8A of Delhi RentControl Act.
Rights related to Tenants
Following are rights available to tenants under Indian tenancy laws and rent control acts:
A tenant has the right to a house that is fit to be lived in. Unsafe conditions, such as holes in the
floor, plaster coming down from the ceiling, bad wiring, and the like are considered unfit. It is the
landlord’s responsibility to see that the house meets the minimum standards of accommodation.
• As per the law, a tenant should be fully informed of all the contents, terms and conditions of
the contract and only upon the consent of the tenant can the agreement be signed by both the
parties which then becomes a valid document.
• Both the parties will have to maintain a copy each of the agreement all the time. The tenant
is also entitled to have appropriate contact information (telephone numbers, email addresses,
postal addresses, etc.) and the landlord can be contacted at any point of time.
• The tenant has the right to privacy. The landlord cannot walk into the house without prior
permission or information unless there is a true emergency like a fire or a flood in the
bathroom.
• It is considered unlawful for a landlord to disconnect essential services such as electricity
and water or restrict a tenant from using common amenities for recovery of rental dues or
for other reasons. If a landlord executes any such brutalities, the tenant can approach the
Rent Control Court to restore essential services and act against the landlord.
• If the landlord harasses the tenant by asking to evict the premises without any lawful reason
and fails to accept rent, the tenant can first issue a notice in writing to the landlord, asking
for details of a bank into which the tenant can directly deposit the rent to the credit of the
landlord. If the landlord fails to respond, the rent can be sent via money order to the
landlord. If this attempt to pay the rent also fails, the tenant must immediately file an
application before a Rent Control Court to deposit further rents in court.
• As far as eviction is concerned, the landlord would have to file a petition before the
competent Rent Control Court to seek eviction of the tenant. Under the Rent Control Act,
landlords can evict tenants only under specific grounds, which include willful default in rent
payment, subletting without the prior consent, causing nuisance or when the landlord
himself requires premises for personal occupation.
• The tenant is entitled to reimbursement for any repairs that he/she carries out that are the
landlord’s responsibility.
• The tenant is entitled to have visitors to stay overnight or for short periods, unless
specifically forbidden in the tenancy agreement. The landlord must be informed if the tenant
has an extra person moving in.
• The tenant is entitled to a certain amount of notice of the termination of tenancy.

6. • The landlord must return the deposit to the Tenant at the end of the lease term with interest
set by a statute.
• Legal heirs of the tenant are also tenants and is entitled to receive all the protection available
to the tenant under the Rent Control Act of various states. However, it is the choice of the
legal heir if he wants to renew the contract with the landlord and continue to stay.
Concept of Sub-letting in India & US
Sub-letting in India
Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third
party. In this connection, reference may be made to the decision of this Court in Shalimar
Tar Products Ltd. v. H.C. Sharma [(1988) 1 SCC 70] where it was held that to constitute a
sub-letting, there must be a parting of legal possession, i.e., possession with the right to
include and also right to exclude others and whether in a particular case there was sub-
letting was substantially a question of fact.
In many cases have been filed on this particular issue. And the judiciary system of India has debated
hugely to decide whether property subletting is legal or not. In 2009, a bench of Justices R.M.
Lodha and Tarun Chaterjee gave the order that partnership business can be carried out by the tenant
but it cannot be a veil to conceal an illegal subletting. In the same year the Supreme Court of India
passed the judgement that a tenant can be evicted from the property if s/he sublets the same
property that s/he has taken on rent without the consent of the landlord. For commercial purposes
the tenant can bring in new partners to his/her business but cannot sublet the property without the
permission of the owner.
Subletting can become a source of money laundering and illegal transactions if the dealing is not
done through proper financial institutions. The taxation, electricity bills and other related issues can
become really complicated if the renting process is not done properly. For a tenant, it is important
that s/he understands the legal implications of subletting and tread that line cautiously.
Following are the cases in which rulings related to sub-letting were laid down:
1. In the case of Associated Hotels of India Ltd., Delhi v. S.B. Sardar Ranjit Singh AIR
1968 SC 933, this Court held that when eviction is sought on the ground of
subletting, the onus to prove subletting is on the landlord. It was further held that if
the landlord prima facie shows that the third party is in exclusive possession of the
premises let out for valuable consideration, it would then be for the tenant to rebut
the evidence.
2. In Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri & Others (1987) 3 SCC
538, this Court held that in a case where a tenant becomes a partner of a
partnership firm and allows the firm to carry on business in the demised premises

7. while he himself retains legal possession thereof, the act of the landlord does not
amount to subletting. It was held that whether there is genuine partnership or not
must be judged in the facts of each case in the light of the principles applicable to
partnership.
Sub-letting in US
The Residential Tenancies Act 1986 (the Act) applies only to the relationship between a tenant and
landlord (including a sub-tenant and a sub-landlord). It does not cover the relationship between
tenants. It is unclear whether your tenant has a sub-let arrangement or a flat-share arrangement as
both your tenant and the sub-tenant continue to reside in the premises. Typically, a sublet
arrangement occurs where a tenant passes possession of the premises to a third party. It does not
usually include an arrangement where the tenant continues to live in the premises or where the
tenant/sub-landlord shares part of their dwelling with the sub-tenant. This type of arrangement may
be considered to be a flat-share arrangement and would therefore not be covered under the Act.
However, where the tenant remains at the premises and only a section of the premises has been
rented (e.g. a completely self-contained unit) then this may be considered a sub-let if the sub-tenant
does not have access to the sub-landlord’s dwelling. For situations that are covered under the Act, in
most cases landlords (including sub-landlords) are required to give a minimum of 90 days’ notice to
terminate a periodic tenancy. Fixed-term tenancies cannot be ended by notice but may be ended by
mutual consent (or by the Tenancy Tribunal in limited circumstances). Notices to terminate a
tenancy must contain certain information and service time must also be allowed for. If it is unclear
whether your tenant has a sublet situation or a flat-share arrangement then either party may apply to
the Tenancy Tribunal to have the matter resolved.

8. Draft of Notice for Eviction of Sub-tenancy to Tenants
Registered A.D.
Sandeep Kumar Bohra
Advocate, Rajasthan High Court
……………………………..
……………………………..
Date January 20, 2018
Shri Pavanputra Sharma
Dear Sir,
Under instructions from my client Smt. Bhanu Prasad Beniwal son of Shri Laxman Prasad Beniwal
resident of Bindiya Bhawan, Jalap Mohalla, Jodhpur owner of the house bearing No. 625C/58
I hereby give you notice that you have without informing and express concent, you sub-let Mr.
Jaturam Kozikhode on the premises which belongs to my client, which he let you for tenancy
occupation under the rent agreement dated May 16, 2014 made between my client of the ONE
PART and you on the OTHER PART in respect of premises No. 35B, Kudi Bhagtasni Housing
Board, Jodhpur. (hereinafter referred to as demised premises).
On the event of asking about the sub-tenant, you always introduced him as your relative to my
client, hence you hide the knowledge of sub-letting from my client which he ought to made
enlightened of. Also, you have riped mesne profit in the form of rent for more than 3 years by sub-
let.
It is also to be bring into your notice that sub-let was expressely impermissible under section 9(e) of
Rajasthan Rent Control Act, 2001 and the clause 8 (d) of rent agreement made between you and my
client dated May 46, 2014, which read as:
“Clause 8(d) Prohibition on Sub-let:
The tenant, undersigned must not sub-let the property, fully or partly, in any condition. If the tenant
found responsible for sub-let without express consent of landlord, the tenant shall be liable to
vacate the possession of propert given in tenancy, peacefully or provding the landlord,
undersigned, reasonable damages of Rs. 20,000 alongwith mesne profit, which the tenant riped
from sub-let.”

9. So, It is to be notified to you that fulfillment of following demands must be complied by you as
soon as possible:
1. To vacate the possession of property which you gave in sub-tenancy peacefully,
2. To surrender the mesne profit which you’ve had riped from the rent by sub-let,
3. To provide damages on violation of provision under rent agreement.
failing of aforementioned demands within 15 days, my client will file a suit against you for
recovery of possession of the demised premises and for damages, which may be sustained by him
by reason of your willfully retaining possession thereof and for breach by you of the covenants
contained in the rent agreement.
Yours faithfully
Sandeep K Bohra
Advocate