In Focus

Leave and license agreement must be in writing

By Gajanan Khergamker

According to legal terminology, the term Leave and License is considered as a right to do or continue to do in or upon the immovable property of a grantor something, which would in the absence of such a right, be unlawful, and such right does not amount to an easement or an interest in the property. Before giving a premises on a leave and license basis, property owners should follow a number of precautions to safeguard their interests in the said property.

Firstly, they should make sure that the stamp paper should be in the name of the party to the agreement. The agreement should be drafted in writing referring to the particulars of the area of the premises, period of license, amount of compensation payable, amount of deposit if any and other particulars after which it should be countersigned by two witnesses. Under the Bombay Stamp Act, 1958, it has been stated that every agreement for leave and license or letting of the premises between a landlord and a tenant or the licensee should be in writing and should be registered.

After the commencement of the Act, there cannot be an oral agreement for tenancy or leave and license premises. The non obstante clause –  ‘notwithstanding anything contained in this Act or any other law’ – gives an overriding effect to this provision and therefore it overrides the Transfer of Property Act, 1882, the Registration Act, 1908 and the Easements Act, 1882.

In order to maintain control over the premises, exclusive possession should not be given and only a duplicate key should be given. The original key should be kept safely with the licensor stating that under no circumstances should the key of the premises be changed. The licensor should also keep an affidavit of the licensee that discloses his full name and permanent address. The affidavit should clearly state that the licensee will vacate the premises unconditionally after the expiry period of the license and if he fails to do so, the licensor can get rid of his personal belongings with the help of the police.

The affidavit should also state that in the event the licensee prolongs his departure after the expiry of his license, the deposit amount given to the licensor by the licensee will also be forfeited and the licensee will be treated as a trespasser. Accordingly, he will also be liable to pay damages and compensation which will be more than two times of the agreed compensation with a penal interest at the rate of 18 percent or more.

To avail a legal service, an expert opinion or an appointment with Solicitor and Property Law Expert Gajanan Khergamker, call 8080441593