Eviction notice and suit: getting a tenant to vacate lawfully

What it is

An eviction notice is a written notice from a landlord to a tenant that ends the tenancy and asks the tenant to hand back the property by a date. Lawyers also call it a notice to quit. If the tenant leaves, that is the end of it. If the tenant stays, the notice becomes the foundation of an eviction suit: a case in which the court is asked to order the tenant to vacate and hand back possession.

Two sets of law decide what the notice must say and what the court can do:

• The Transfer of Property Act, 1882, which governs leases in general. Under Section 111, a lease ends when its time runs out, when a notice to quit given by one side to the other expires, and in a few other cases. Under Section 108(q), when the lease ends the tenant must put the landlord back in possession.
• Your state's rent law, where it applies. Many states have a rent control Act that protects tenants of certain premises. These Acts usually allow eviction only on the grounds they list and may set their own notice rules. Whether yours applies depends on the state, the area, the type of property and sometimes the rent. Most state rent Acts are not yet in our statute library, so this guide names only the Gujarat example below.

When it applies

You need an eviction notice when:

• the tenancy has no fixed end, or has run on month to month, and you want it to end;
• the fixed term has ended but the tenant has not left;
• the tenant has broken the agreement — unpaid rent, subletting without consent, damage, a use other than agreed;
• you need the property back for a reason your state's rent law recognises, such as your own genuine need.

Which rule sets the notice period. Section 106 says that, unless a contract, local law or usage says otherwise:

• a lease for any purpose other than agriculture or manufacturing — a house, flat or shop — is month to month, ended by 15 days' notice;
• a lease for agricultural or manufacturing purposes is year to year, ended by six months' notice;
• the period runs from the day the tenant receives the notice;
• the notice must be in writing, signed by you or on your behalf, and sent by post, or handed to the tenant or a family member or servant at their residence, or, if that is not possible, fixed to a conspicuous part of the property.

So read your rent agreement first: a notice clause in it usually governs.

Example: Gujarat. In the areas where the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 applies as in force in Gujarat, a landlord cannot recover possession while the tenant pays, or is ready and willing to pay, the standard rent and keeps the other conditions of the tenancy (Section 12(1)), unless the court is satisfied of a ground in Section 13 — for example, damage or misuse contrary to Section 108(o) of the Transfer of Property Act, a permanent structure built without written consent, unlawful subletting, nuisance, or the landlord's reasonable and genuine need of the premises. A suit on the ground of unpaid rent cannot be filed until one month after a written demand served in the manner of Section 106 (Section 12(2)). Other states differ; ask an advocate for yours.

The steps and the timeline

1. Work out which law applies (first few days). The advocate reads the rent agreement and checks whether your state's rent law covers the property, and on what grounds it allows eviction.

2. Send the notice. It names the tenancy, the ground where one is needed, the period, and the date to vacate. It is sent by registered post or speed post with acknowledgement due, and the postal proof is kept. A notice with the wrong period or the wrong ground can delay the whole case, so let an advocate draft it.

3. The notice period runs. Do not accept rent "for the next month" after the date to vacate without advice: accepting rent or otherwise agreeing to the tenant staying can renew the tenancy month to month under Section 116. Money for the period of occupation after the notice can be handled in the suit.

4. If the tenant does not leave — the eviction suit. A suit to recover the property is filed in the court where the property is situated (Section 16, Code of Civil Procedure); a person entitled to possession recovers it through that procedure (Section 5, Specific Relief Act). Where a state rent law applies, it may name the court or authority. The tenant is served and can contest; the court hears both sides and decides. Arrears of rent and payment for continued occupation can be claimed in the same case.

5. The decree and its execution. If the court orders eviction and the tenant still does not leave, the order is enforced through the court, not by you.

Never take possession yourself. Changing locks, removing the tenant's belongings, or cutting off water or power to force them out is not a lawful route. Under Section 6 of the Specific Relief Act, a person removed from property without consent and without due process can sue within six months to get possession back, regardless of your title. You may end up further behind than when you started.

Documents needed

• The rent agreement, and any renewals.
• Your title document, or another proof that you are the owner or the landlord.
• Rent receipts or bank records showing what was paid and what is unpaid.
• Any earlier notices, letters or messages with the tenant.
• Evidence for your ground: photos of damage, proof of subletting, or documents showing your own need for the property.
• The tenant's full name and every address you have for them.

Typical cost

• The advocate's fee for the notice and, if needed, the suit. The advocate quotes their own fee after looking at your papers, before you pay anything. It varies with the city, the court and whether the case is contested. eMunshi does not set it.
• Court fees, if a suit is filed, set by your state's court-fee law and shown at filing.

What the advocate does

• Tells you which law governs your tenancy and whether you have a ground it accepts.
• Drafts the notice with the right period and ground, and sends it with proof of service.
• Advises you on what to do during the notice period, including rent.
• Files the eviction suit if the tenant stays, appears for you, and claims arrears.
• Takes the decree through execution if the tenant still does not leave.

The self-serve document that comes before it

The best way to avoid an eviction case is a clear tenancy from day one. A rent agreement that sets the term, the rent, the deposit and a notice clause costs ₹599 with eMunshi, e-stamped and e-signed. See making a rent agreement. If you want advice before deciding, a 30-minute call with an independent advocate from our panel starts at ₹999.