Demystifying Rent Agreement Affidavits: A Comprehensive Guide

What exactly is a Rent Agreement Affidavit?

A rental agreement affidavit is a written document, used in India, where a person provides a legal document to prove to an authority that s/he has rented out some property. It is a simple document, according to its title, which states the details of the property and the period for which it has been rented out. Further , it also states the terms and conditions of the rental arrangement and duly signed by the landlord and two witnesses. It is treated as on oath and holds validity beyond those merely written down in the document. It differs from a typical rental agreement as it is not generally registered in the Sub-Registrar Office under the Registration Act, 1908. Subsequently, it becomes a public document, and thus, giving a strong backing to the claims made by the party signing it.

Legal Mandates for a Rent Agreement Affidavit

In a civil suit or in any proceeding, when a sworn statement is required to be made, it is to be in the form of an affidavit and signed by the individual making the statement. In a rent agreement affidavit, the lessor is the one who signs under the circumstances of an attestation and it is prepared on a non-judicial stamp paper of the appropriate value. The purpose of an affidavit includes sometimes testimonial evidence in a variety of legal proceedings or for purposes of record-keeping and compliance with rules or regulations. Whatever the purpose an affidavit is required for, the requirements for an affidavit remain the same.
A rent agreement affidavit is to be executed by the lessor, lessor’s heirs (if alive) and the subscribing witnesses and is not enforceable unless properly registered.
The following are the components that are required to be covered in a rent agreement affidavit according to the current laws:
• A clear statement of facts for the basis of the affidavit is to be drafted. For example, if a party has moved into a rented apartment or house, then a statement indicating the address of the property should be made.
• The execution of the rent agreement affidavit is to be attested in the presence of at least two subscribing witnesses.
• The executing party to the affidavit is to rely on the veracity of the attestation of the subscribing witnesses.
• The property in question must be properly described and the measure of the property should be provided.
• A statutory declaration is required for out-of-country persons to use the services of a Barrister or Solicitor to attest to the identity of the individual signing the rent agreement affidavit. The attesting lawyer will be acting as a witness to the signature of the individual.

Advantages of Employing an Affidavit for Rent Agreements

Affidavit rent agreements are an alternative to or an addition to a traditional rent agreement. The advantages of employing one of these affidavits include the following.
Affidavit Substantiation
As discussed above, the notarized affidavit provides evidence that a rent agreement contract is in effect, according to the relevant state laws. An affidavit can be presented to any jurisdictional authority without a lot of footwork and red tape.
Modifiability
One of the disadvantages of a standard rent agreement contract is the time it can take to amend. If a landowner and tenant want to make changes, they often have to go through the entire process of creating and signing a new contract. An affidavit, however, can be easily amended.
Minor Changes in Terms
Some wording in a rent agreement contract can result in problems for a landowner or a tenant. For instance, if there is a late fee in the contract, this can be problematic to enforce. While the amount of a fee is not usually an issue, the language regarding when the fee is applied can be. An affidavit can deal with this easily.
Legality of Last-Minute Changes
When a rent agreement contract is created, it is essential for the document to be legally binding. A person who signs in the haste of the moment may not pay full attention to the terms and conditions of the agreement. A notarized affidavit provides security to both the signer (who cannot claim he or she did not read a document) and the landowner or landlord who will not need to go through the legal system to prove a contract is valid.
Protection From Calamity
No one wants to think about a natural disaster that could potentially lead to the loss of paperwork. A notarized affidavit for a rent agreement contract can protect people from losing this important document. The contract is then filed with the state authorities, therefore cannot be lost or destroyed in a fire, flood or other disaster.

How to Prepare a Rent Agreement Affidavit

Identify the Parties: At the top of the affidavit, include the names as well as the parentage (e.g. ‘s/o,’ ‘w/o’) of the parties (the landowner and the tenant).
Property Details: Next, provide a detailed description of the property being rented out. Include specifics such as the address, area, size, and the type of property (house, flat, independent unit, etc.).
Monthly Rent Amount: Specify the monthly rent amount, including the exact figure and whether it includes utilities such as water or electricity, and any other relevant costs.
Advance Payment and Duration: Indicate how much advance the tenant has paid, whether it is refundable in case the tenant vacates the property, and the duration of the lease (e.g. 11 months, two years, etc.).
Security Deposit: If applicable, the affidavit can also mention the security deposit in case it is paid by the tenant.
Moving In/Out Dates: Sometimes , affidavits include information about the date the tenant will take possession of the property and when they will move out.
Notice Period: Some rent agreement affidavits indicate how long in advance either party must give notice if they need to end the lease.
Eviction Clauses: Include terms for what happens if the tenant does not pay rent or if the landlord wants to evict the tenant early for any reason.
Bond of Tenancy: If the tenant is requiring a bond of tenancy, this should be indicated, and what happens if anything goes wrong with the bond.
Other clauses that are often also included are: where rent is to be paid; alterations by the tenant; payment of utility and repairs; eviction due to failure to pay; subletting; actions if tenant disobeys terms of the tenancy; default in rent and penalty.

Errors to Steer Clear Of

One common mistake tenants make while creating the rent agreement is not coming for the registration process along with the landlord. This may end up causing them to pay a fine of 500 or even losing their claim to the rented property. A second crucial error people tend to make is to create an agreement based on the clause that the tenant will not move out without the landlord’s consent. It is very important to state that the tenant will be evicted if no notice is given before vacating the house rather than being evicted when he/she refuses to move out. Another common mistake is failing to create the rent agreement under the Registration Act, 1908. It is mandatory to register the agreement under this act. Failure to do so will cause problems while settling future disputes. People also forget to mention and provide stamp paper pertaining to payment of electricity charges and maintenance costs. This can lead to quarrels between the landlord and the tenant regarding claim over water and electricity charges. This can make it difficult for the tenant to retrieve his/her security deposit. The term ‘sub let’ is frequently misused. This can have several connotations. The tenant needs to ensure he/she defines the term for the duration of the rent agreement. In the event that there is a sub let, the original tenant will still be responsible for paying the rent. Some landlords and tenants tend to add a clause that makes the agreement valid for a minimum period of six months, even though they may want to sign for a shorter time period. They do this to avoid paying higher stamp duty. This, however, can become a hassle later on. Another problem which almost always crops up while making an affidavit is the missing witness signature. This can cause the tenant trouble while settling future disputes. This is why it is essential for a third-party witness who has met with both parties to sign the form, which should then be stamped as well. To prevent these and other business mistakes it is important to consult a real estate legal professional who can better help you understand and navigate through the laws and regulations in place regarding rent.

Common Queries

If the online process for drafting a rent agreement affidavit is so easy, many readers will have questions in their minds related to rent agreement affidavit. We have tried to answer common questions below:
Is the "Rent Agreement Affidavit" enforceable in a Court of Law?
Both rent agreement affidavit and rent agreement derive their enforceability from section 107 of Transfer of Property Act, 1882. By virtue of this section and its judicial interpretation, the "Rent Agreement Affidavit" is as enforceable as any other rent agreement executed on stamped paper.
Can a "Rent Agreement Affidavit" be modified?
In practice, it is very common for the terms of lease to change during the course of tenancy. As long as the changes are mutually agreed between the tenant and landlord, the terms can be modified and the modification can be recorded either in the form of:
How much time "Rent Agreement Affidavit" remain valid for?
As a matter of general practice, the tenancy which is assigned to "Rent Agreement Affidavit" is either for 11 months or 36 months . The option of assignment of tenancy for 11 months is chosen by the tenant and landlord primarily because the stamp duty and taxation impact till the term of 11 months is substantially low.
A tenancy for 36 months is selected when the tenant and landlord wish to have tax advantage of longer lease term.
Another aspect to note is the written "Rent Agreement Affidavit" essentially evidences the intent of both tenant and landlord that the terms and conditions as listed in the affidavit should stay in force. Thus, in case the landlord does not serve a notice to vacate after the completion of 11 months, the intent is to extend the tenancy till such time the landlord wants the tenant to vacate. This intent is the basis for initiating eviction proceedings against the tenant.
These seals do not have any special legal significance; they are primarily for the administrative convenience of the Notary. With these seals the Notary knows where the Affidavit has been issued from and he can safely tell you that the original is not in his custody, but the copy is in his custodial care. It is a method of recognition used in the Notarial community.