What is the difference between a lease and a licence under Section 105 of the Transfer of Property Act?

Question

I have let out a room to a tenant under a leave and licence agreement, but he claims he has tenancy rights. How do I know if this is a lease or a licence? Before I spend money on it, I want to know whether Transfer of Property Act 1882, Section 105 gives me a remedy here and what proof I would need. Any Section numbers I can quote when I write to them would be useful.

MyVakeel Legal Desk · Accepted Answer

Transfer of Property Act 1882, Section 105, Indian Easements Act 1882, Section 52 and Rent Control Acts (state-specific) is what decides this question in India. Read it alongside the provisions named, because the relief available to you turns on the facts you can prove on paper.

Section 105 defines a lease as a transfer of a right to enjoy immovable property for a certain time in exchange for rent, which creates an interest in the property in favour of the lessee.

A licence under Section 52 of the Indian Easements Act only grants a personal permission to use property without creating any interest, and is revocable by the licensor subject to contract terms.

Courts look at the substance, not the label, of the document to decide whether exclusive possession was handed over with an intention to create a tenancy, which would make it a lease despite being called a licence.

A genuine lease attracts state rent control legislation protections for the tenant, including restrictions on eviction, while a licence does not give such statutory protection.

Structuring an arrangement as leave and licence with periodic renewal, no exclusive possession and a right of the owner to enter is a common way to avoid rent control complications, but courts scrutinise sham arrangements.

In practice, in this order: 1) Review whether the occupant has exclusive possession, which suggests a lease rather than a licence; 2) Draft the agreement clearly stating the nature of the arrangement and get it registered where the term exceeds 11 months; 3) Renew leave and licence agreements periodically instead of letting them run indefinitely; 4) Consult a lawyer before initiating eviction to determine which law and forum applies.

Timing matters here: Transfer of Property Act 1882, Section 105 works on limitation periods, so a lease vs licence claim that is right on the merits can still fail if it is brought late. You can post the details on the MyVakeel forum for a practising advocate to review, or book a paid consultation with a Bar Council verified lawyer in property law.