I have been renting a flat from my landlord for the past 3 years. In the rental agreement, the landlord represented that the flat had a built up area of 1295 square feet and set the monthly rent at Rs. 27000/- inclusive of all maintenance fees. I have been dutifully paying the rent on time. Now the landlord wanted to sell the flat and I expressed an interest to purchase the flat. We entered into a sale agreement and once again the landlord represented that the built up area of the flat is 1295 square feet in the sale agreement. While trying to obtain a mortgage, the bank discovered that the built up area is only 1094 square feet and has lowered the value of the property accordingly. The landlord may refuse to sell the property to me at the lowered bank estimate. But the real issue here is that the landlord has been collecting a higher rent based on his misrepresentation as he was clearly aware that the flat is only 1094 square feet as specified in the development agreement which he signed with the builder. Due to his misrepresentation, I have paid an amount of Rs.4190/- in excess every month or a total of Rs. 1,50,000/- to date. The landlord holds Rs. 3,00,000/- of my money (Deposit of Rs. 1,50,000 plus excess rent of Rs. 1,50,000 from misrepresentation). This is equivalent to about 13 months of fair market monthly rent of Rs. 22,810/-. What are my legal options assuming that the sale will not go through? Can I stop paying the rent for about 7 months to recover the excess rent I paid until the money he holds is reduced to 6 months of rent to cover the deposit? Are there any other options available to me? The rental agreement is a eleven month agreement with an extension clause in the agreement
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1) do not renew the rental agreement
2) vacate premises on expiry of agreement
3) seek return of security deposit and excess rentals charged by him
4) if he fails to pay sue the landlord to recover security deposit and excess of rentals recovered by landlord
5) amicable settlement is best option
If your rental agreement states the extent of property as 1295 Sq.ft and the monthly rental amount was fixed on that basis, you have a right to demand the return of the excess amount of rental amount received by the landlord so far.
Whether you had verified the property title document in possession of landlord to confirm his title and also have you not noted the correct extent of the property as per the title document?
If not, then demand the copy of the title document to cross check the bank's statement about the extent of the land to that of the extent mentioned in the registered title document in favor of the landlord.
If the registered title document shows correct extent as per the version of landlord, then you may find out why and what went wrong or whether there is any suppression of fact material by the landlord or whether the bank had furnished incorrect details about the extent of property.
After ascertaining the correct details, if you are not able to properly assess the correct details, you may take the help of a local advocate, and proceed with the proposed action against the landlord by first issuing a legal notice demanding the refund of the excess amount paid so far and then resort to further legal action in this regard if the landlord refuses to accept the mistake on his part or denies to return the excess amount.
Thus you may take abundant caution before taking any legal action in this regard to ascertain correct details of the property and then enter into the sensitive part of the legal process which has been proposed.
You can claim the amount by sending a legal notice to the landlord in this regard that he has made the mistake in rental agreement by increasing the area of the apartment however it is not advised to stop the rent payment because you will be defaulting in payment of rent and be liable to vacate the property on ground of defaulting rent payment
You should have verified the actual extent before signing the rental agreement. Having entered into a written rental agreement and having agreed to pay the monthly rental, you cannot challenge the agreement now on the basis of any misrepresentation. Rental agreement and agreement of sale are two mutually exclusive contracts, though between the same parties, you and your landlord. If you are really interested in purchasing the property, put the rental issues aside and proceed with purchase arrangements. Good luck!
1. It was your duty to exercise all due diligence before inception of tenancy to vouchsafe that flat has the built up area claimed by landlord.
2. The ideal thing to do in this scenario is to issue a lawyer's notice to the landlord to ask him to refund the excess rent collected by him through fraud and cheating. A FIR can be filed against him under Section 420 and 406 IPC.
