‘Tenants have no right to a terrace’

I am one of six tenants residing in a four-storey building. The tenants have been staying here for more than two decades. The landlord occupies one of the ground-floor flats. There are two staircases leading to the terrace that pass through the flats on the top storey. The co-tenants believe that that they have a right to the terrace above the flat as the landlord does not have access to it. The terrace is not mentioned in the rent receipts the landlord issues. What is the legal status vis-à-vis the landlord and the tenants? Can the co-tenants prevent us from using the terrace?

Name and address withheld

the expert: The right to a roof or terrace depends on the tenancy agreement. In the normal course, tenancy right extends to the flat and not to the terrace — unless it is otherwise specified in the agreement.

Tenants are allowed to use the terrace only if it is absolutely necessary, say, in order to fix the antenna or for repairs.

As such, your co-tenants have no right to the terrace except for reasons I have specified above. They certainly cannot enjoy exclusive rights to the terrace or bar other tenants from using it.

Joint responsibility

We had let out a room space in February 1995 for tenancy-at-will on a month-to-month basis for commercial use. A fixed amount was also taken as security deposit for granting tenancy. There was a clause of enhancement of rent by 10 per cent every three years. It was also mentioned that corporation taxes and maintenance were to be borne by the landlord (i.e., us). This arrangement worked amicably upon renewal in 1998 and 2001. Since 2004, however, the tenant has refused to enhance the rent at 10 per cent as stipulated by the agreement and has been paying rent to the rent controller. How can we realise our dues? Can we claim maintenance charges or municipal taxes under the new Premises Tenancy Act?

Name and address withheld

the expert: To realise your dues you may apply to the controller. You may also ask for fixation of fair rent as per provisions of Section 17 of the West Bengal Tenancy Act. As per Section 5 of the Act, it is the obligation of the tenant to pay charges relating to maintenance and amenities of the premises at the rate of 10 per cent of the fair or agreed rent. Furthermore, every tenant shall pay his share of municipal tax as an occupier of the premises in accordance with the provisions of the Municipal Act.

Owner’s onus

I have lived in a 900-square-foot flat since March 1971. The initial rent was Rs 375 which has been increased over the years following negotiations with the landlord. It now stands at Rs 1,000, half of which covers service charges. The landlord does not take good care of the building. Its condition is poor. He holds that the rents collected do not warrant repairs, etc. He is now asking for enhancement of rent by 30 per cent. The last hike ? of 15 per cent ? was in February 2002. I would like to know the following:

a) Current fair rent as per West Bengal Premises Tenancy Act.

b) The ways of persuading the landlord to keep the building in proper condition.

W.N. Sagar,
Calcutta 700029

the expert: In your case, fair rent shall be determined according to Section 17(3) of the West Bengal Premises Tenancy Act. It states that where a tenancy subsists for 20 or more years, fair rent shall be determined by adding to the rent as on July 1, 1976, not more than three times the amount, and then deducting the increase, if any, in the manner provided in Schedule II. Otherwise, the existing rent can be accepted if the amount comes to more than the increased sum according to the Schedule. Rent in excess of fair rent cannot be charged as per Section 13 of the Act. In case the landlord contravenes that provision, you may file a complaint under Section 28 of the Act.

According to Section 4(2) and (3) of the Act, a landlord is bound to keep the premises in good condition. He is bound to take measures to ensure essential supply or service comprised in the tenancy. For effecting essential repairs, you may make an application to the rent controller under Sections 35 and/or 36 of the Act.

Numbers game

We have an office space on Mission Row, Calcutta, which was let out for a period of six years in 1977. The tenant has not been increasing rent and has refused to vacate the premises. He prefers to fight it out in court. However, we know that a court case will be pending for years whereas we want speedy disposal of the matter. He was paying Rs 500 as rent till 2004. The annual rent ? Rs 6,000 ? would be deposited to our bank account. What are the ways of increasing the rent as per the West Bengal Premises Tenancy Act? What is the cut-off date for fair rent?

P. Sinha,
Calcutta

the expert: You have not mentioned any agreement between yourself and the tenant. It is also not clear whether or not you have issued a notice to your tenant for increasing rent or vacating premises.

Section 17(4A) of the West Bengal Premises Tenancy Act (as amended in 2002) states that where tenancy of a commercial space subsists for more than 20 years, fair rent shall be determined by adding five times to the rent as it stands on July 1, 1976. In your case, however, the tenancy began in 1977. So, Section 17(6) of the Act applies to this case. It states that fair rent shall be such as would be reasonable in regard to the situation, locality and condition of the premises. The rent of similar premises in the locality should also be considered while calculating the fair rent.

You have to make an application to the controller for fixation of fair rent. As per Section 19 of the Act, the increased rent shall be payable from the month of tenancy following the date of application.

Reason to worry

We have a shop in a trustee building on College Street since January 5, 1987. The original rent of Rs 135 was increased to Rs 178 in October 2001. In October 2002, the rent was increased to Rs 554 (Rs 432+ Rs 43 {maintenance charge}+ Rs 79 {municipal tax}). We have not been paying rent since June 2002. A few days ago, we received a notice from the manager of the trustee regarding clearing of dues. Is the hike in our rent justified?

Sumit A.,
Calcutta 700007

the expert: You have given the trustees valid grounds for filing an eviction suit against you under Section 6(1)(b) of the West Bengal Premises Tenancy Act.

In your case, fair rent shall be determined under Section 17(6) of the Act. As per Section 5(7), you have to pay 10 per cent of the fair rent as maintenance charge. Section 5(8) provides for payment of your share of municipal tax. You may make an application for fixation of fair rent to the rent controller. You must, however, pay rent to the landlord or to the controller.