This article is targeted to discuss Tenancy by holding over as
given under the Transfer of property Act, 1872.Tenancy by holding over has been
guaranteed under 116 of the Act which states as :-
“If a lessee or under-lessee of property
remains in possession thereof after the determination of the lease granted to
the lessee, and the lessor or his legal representative accepts rent from the
lessee or under-lessee, or otherwise assents to his continuing in possession,
the lease is, in the absence of an agreement to the contrary, renewed from year
to year, or from month to month, according to the purpose for which the
property is leased, as specified in section 106 “
This section enunciates the effect when the lessee or an
under-lessee of a property stays in the possession after the determination of
lease (also known as the termination of lease as mentioned under section 111 of
the Transfer of Property Act,1872 ) and the lessor or his legal representative assent
to the continuation in possession or accept rent thereof then the lease will be
renewed as per the provision given under section 106 of the Transfer of Property
Act ,1872 in the absence of any agreement to the contrary.
It is to be pointed here that the whole effect of this section is dependable
on the assent of the lessor or his legal representative by the way of giving assent
or accepting rent both ad idem. This clearly implies that there must be meeting
of minds between the lessor or his legal representative and the Lessee or the
under-lessee concerning the continuation of possession after the determination
of lease. Hence, a mere acceptance of rent would not act as a sufficient ground
to attract this section.
How
is tenancy by holding over determined?
The essential ingredients in determining the tenancy by holding
over are as follows:
· The possession
must be continued with the assent of the lessor or his legal representatives.
· The consent
must be definite in pursuance to the continuation of tenancy.
· Consent or
the assent must be consensus ad idem leaving no room for any loop holes and
inadequate inferences.
· Acceptance
of the rent must always be in the clear recognition of the acceptance of
tenancy.
Tenancy-at-sufferance
In the above scenario the possession was continued since the
determination of lease with the assent of the lessor or his legal representatives.
Whereas, when a lessee or an under-lesssee happens to continue in the possession
of the property since the determination of lease without the assent of the
lessor or his legal representatives then this is termed as the tenancy at sufferance.
The tenant at sufferance does not enjoy any legal title and can be subjected to
ejectment without serving any notice.
Tenancy
at will
Tenancy at will is a tenancy which is terminable at the will of
either the landlord or his tenant. A tenancy at will can arise anytime by the
implication of law with the consent of owner to continue in possession or, by
an express agreement to pay compensation on day to day basis where the period
of tenancy is not defined. One of the important differences between tenancy at
will and tenancy by holding over is the power of alienation. Tenancy by holding
over entitles the tenant to alienate tenancy however the same is not true in
case of tenancy at will.
Tenancy
at will is terminable /determined in the following manner:
- · Terminable by either of the parties (Landlord or Tenant / lessee)
- · Death or the landlord or the tenant/lessee.
- · When a tenant puts the possession on sub lease /under lease.
- · When the Tenant/ Lessee acts inconsistent with the will to continue.
- · Alienation of tenancy.
Difference between tenancy by Holding over and tenancy-at-sufferance:-
Retention of possession:
Tenancy by holding over: With the consent of landlord or his legal
representative
Tenancy- at-sufferance: No consent
Interest in the leasehold
Tenancy by holding over – Has some interest
Tenancy -at-sufferance – No interest
Power to alienate tenancy
Tenancy by holding over – Transferable and heritable
Tenancy-at-sufferance – Neither transferable nor heritable
Notice for ejectment
Tenancy by holding over – Notice as with respect to provision U/S
106 of the act
Tenancy –at- sufferance – No notice required
Regards,
Maitreyi Raghuraman
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