Recovery Of Possession Of Immovable Property

In most countries the law provides for recovery of possession of immovable property through a formal lease or tenancy agreement entered into between the landlord and the tenant. Where parties have entered into a lease agreement, the below mentioned cannot be disputed
1.    The Lessor is the owner of the property.
2.    The Lessee/Tenant occupies the premises on certain conditions like the payment of a monthly rental for a fixed term.
3.     He agrees to vacate the premises at the expiry or the termination of the lease.
4.     The Lessee/Tenant cannot claim title to the property. These facts cannot be disputed. The law should provide procedure to permit the title holder/landlord to recover possession without filing a Regular Civil Action in the District Court. In the event of appeals the case could take 5-10 years. This paralyses economic development. As such land owners are reluctant to lease immovable property even on a formal lease agreement in the event it becomes necessary to go through protracted civil litigation.
In Sri Lanka, the state has made provision for recovery of possession of government quarters and state lands but private land owners are helpless. The law is clearly discriminatory as the state and the private citizen are not on a level playing field. The right to equality and non discrimination is violated by the said enhancements. The law should help development and it is imperative that provision should be made for landlords to obtain possession with the least expense and delay.
The impact on the economy of such a law would be enormous. There will be a construction boom. People will build houses and office complexes as they will have no fears of recovering  possession of their property. Various categories of professionals and workers will find employment such as surveyors, architects, engineers, contractors, electricians, plumbers and unskilled labours. In addition to which, the workload in the District Court will be reduced. This is one way of activating the economy and providing better housing and employment for the people. A 10% growth rate is possible if some of the archaic laws which obstruct development are repealed and amended.
It is relevant to observe that where the government owns immovable property, two laws provide for speedy recovery of possession, namely:
1.    The Recovery of Possession of Government Quarters Act
2.    The Recovery of Possession of State Lands Act
Under both laws, notice is given to the occupier and thereafter an application is made to the appropriate Magistrate Court for a Writ to be issued to the fiscal, who will act in terms of the law and eject the occupant and hand over possession to the state. Under both laws the only defense the occupant has is to prove that he is in occupation on a valid permit from the state. A protracted inquiry is not contemplated. The first law is used to eject public servants who have retired and MPs who have lost the elections and continue to occupy quarters.
It should be observed that the rent laws do not apply to houses owned by the Commissioner of National Housing, the National Housing Development Authority and to houses owned by local authorities. Therefore the law is discriminatory and the private citizen who holds immovable property has to file a regular civil action to recover possession which may even take seven years. Therefore there is an urgent need for a law to be enacted (this is available in other countries) to enable landlords to obtain possession in the same manner that the state recovers possession of immovable property.
The right to equality and non discrimination should not be violated by giving preferential treatment to the state in respect of immovable property owned by the state. Needless to say that the enactment of such a law will jump-start the economy and give rise to a construction boom which will in turn give rise to a larger housing stock, and thus bringing down rents and provide employment. The enactment of such a law is compatible with the right to own property which is a fundamental right in other jurisdictions.
This article is written in the public interest.
Anton Fernando

1 Comment for “Recovery Of Possession Of Immovable Property”

  1. I have personally experienced the difficulty in repossession the house I rented. It took years for the court case. I know number of people who will keep the houses vacant when they go abroad temporarily and they are fearful that the tenant would not leave although there are legal agreements.

    It is definetely different in the UK. Once you give two months notice, the tenant has to leave. If the tenant does not leave, a court case takes about 3 months and the possession is given to the owner. It is high time Srilanka introduce a similar law to make life easy for the landlords and tenants alike as people will know where they stand. It definetely should not take years and years making lawyers richer and the landlords suffer while the tenants enjoy.

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