When tenants and landlords fail to agree

In our sister magazine, CCI, we carried a story of a war looming between landlords and tenants in the country’s major slums. Today, Harold Ayodo looks at how ignorance of the law fuels this conflict.

The sour relationship between tenants and their landlords over failure to honour tenancy responsibilities has been a major cause of concern.

Tenants both in residential houses and business premises accuse their landlords of using illegal means to increase rents.

Landlords on the other hand say property value appreciates monthly and increasing the rent is, therefore, an overriding prerequisite. Tenants also say that property owners serve them with eviction notices a week after the agreed grace period to pay them.

Other landlords also stand accused of bullying tactics like disconnecting electricity and water before ambushing a tenant with auctioneers.

Property pundits agree that landlords have recently perfected the art of evictions even when the law requires them to go through tribunals. Some landlords tell tenants to move out to enable them rehabilitate the premises, which is just a cover up before they bring in new occupants and charge them more.

Conveyances (property lawyers), however, say the tug of war between tenants and landlords exists over failure to enter lease agreements.

Sheila Wambua says she moved out of her previous house in South B after her landlady made her life miserable.

"My March salary had delayed for a week and the owner disconnected both the electricity and water supply," Wambua says.

She had explained her predicament to the landlady that salaries would delay as their company was cost cutting and retrenching redundant staff.

"I used to pay Sh15,000 per month but she (landlady) insisted she wanted rent promptly and increased it to Sh20,000," Wambua says.

She moved out this month, and the new tenant is paying Sh22,000 for the one-bedroomed house.

Kenyan Macharia who stays in Lang’ata says owners of the modern flats and apartments in Lang’ata work with lease agreements.

Lease agreements

"My agreement with the landlord is to deposit the Sh20,000 rent at a local bank at the end of the month as per the one year lease (tenancy) agreement," Macharia says.

Hope and Faith Centre that is taking care of the disabled children. Tenants of this house are faced with eviction.

He then gives the deposit slip to the caretaker of the flat for accounting purposes.

Sarah Wanjiku who owns a commercial building says she has evicted three tenants over the past two years over unpaid rent.

Wanjiku says property owners are always at a fix when tenants fail to honour their part of lease agreements.

"There are tenants who are a thorn in the flesh as they are rarely seen at the end of the month before issuing a series of excuses for non-payment of rent," she says.

Wanjiku sought legal proceedings before she eventually evicted her tenants and says the process is too costly.

"Most landlords resort to auctioneers because the legal process drags as the tenant continues to enjoy facilities without paying a cent," Wanjiku says.

Miriam Charo who lives in South ‘C’ says she talked her husband into buying their current family house to escape the nightmare that is perpetual increments of rent.

ever increasing rents

"Rent kept increasing at an alarming rate and our calculations showed it was better to take a mortgage after paying 20 per cent of the sale price as deposit," Charo says.

She says their tenancy agreement had provisions that the landlord repairs and maintains the house, which were never honoured.

"Our expenditure in rent of Sh20,000 per month, which increased twice a year was unimaginable as we financed repairs that were not part of the contract," Charo says.

She argues that it is better to use the amount on mortgage and eventually have the house for keeps.

"We are now free as a family from the hustles of explaining to the landlord why rent may delay or engage in verbal exchanges over unfair increments," Charo says.

Lawyers concur that tenants and landlords do not know their legal rights and responsibilities. Lawyer Juliet Busienei of Ojienda and Company Advocates says landlords who disconnect electricity and water supply without due procedure breach the law.

Busienei says the Rent Restriction Act and the Landlord and Tenant Act gives the process landlords should follow to recover unpaid rent.

"Landlords whose houses go for less than Sh2,500 per month should move to the Rent Restriction Tribunals to seek permission to recover arrears," she explains.

"The landlord has authority under the Distress for Rent Act (DRA) to instruct his/her advocates to engage a licensed auctioneer to levy distress for rent arrears," the lawyer says.

Landlords of commercial premises (controlled tenancies) should seek permission from the Business Premises Rent Tribunal before levying distress.

redress from tribunals

"Landlords of business premises who eject defaulting tenants for recovery of rent arrears without orders from the Business Tribunal breach the law," Busienei says.

Defaulting tenants have options to be cushioned from distress by landlords by seeking redress from tribunals.

"Tenants can seek injunctions restraining landlords from levying distress, attaching and selling their property," Busienei explains.

Tenants can also enter into agreements with landlords on the mode of payment of the rent arrears and maintain the premises.

"Tenants can also go to the tribunals if the landlord terminates the tenancy illegally," Busienei says. And where the landlord has refused to carry out repairs, a tenant can seek legal redress.

"Tribunals are not the last resort as displeased parties can move to the High Court to appeal or seek an out-of-court settlement," Busienei explains.

The Landlord and Tenants Act imposes restrictions on a controlled tenancy if he/she increases the rent or terminates the tenancy at will. The landlord is required to issue a tenant with a notice and is essentially prevented from evicting him/her without referring the dispute to the Tribunal.

Tenants also have a right to oppose evictions or termination of tenancy by opposing the application of the landlord before the tribunal.

"It is difficult for the landlord to terminate the tenancy as tenants are protected by tribunals especially if the tenancy is controlled," Busienei says.

Lawyer Lucas Kang’oli of King’oo, Njagi & Company Advocates says both parties are required to have their agreement in writing for purposes or clarity and rules that guide the relationship.

"The Registered Lands Act (RLA) and the Indian Transfer of Property Act (ITPA) are among the legislations that spell out obligations of tenancy," Kang’oli says.

Landlords should ensure that tenants enjoy their rights and protect them against interference by agents.

It is illegal for landlords to demand to view the rented property before issuing reasonable notice to the tenant and at a convenient time — such owners are liable to complain for trespass.

Residential houses and commercial premises must be fit for the purposes, which they are rented and the owner must disclose defects the tenant cannot discover ordinarily.

suspension of rent

Section 53(e) of the RLA provides for the suspension of rent — partially or in full — if the leased (rented) property is destroyed by fire or unrest.

"Tenants can lawfully stop their monthly payments if the rented property is inhabitable six months after destruction by fire after issuing a one month notice," Kang’oli says.

The ITPA, which is applicable in Kenya, cancels the tenancy agreement if the property is unfit for the purpose it was rented.

"Cancellation of the agreement, however, does not apply when the destruction is either caused or follows the negligence of the tenant," says Kang’oli.

Most property laws bestow on the landlord the responsibilities of maintenance of roofs, walls, drains, common passageways and installation.

"Tenants should pay their rent as agreed before they moved into the property unless the house or premise is destroyed and inhabitable," Kang’oli says.

The law, however, offers no remedies to proprietors at the mercy of occupants who have defaulted on their monthly payments.

The landlord should not break into the house unless the tenant has removed some belonging.

"Illegal distress by the owner amounts to trespass and could give rise to damages for double the value of the goods seized," Kang’oli says.

recovering rent

The landlord can — besides levying distress — commence an action towards recovery of the rent due. Legal action to recover defaulted payments should commence within six months from the date the rent was last acknowledged to be due.

The Act, however, is contradictory as it prevents property owners from seizing property in the actual use of tenants, perishables and linen.

The parties (tenant and landlord) may sue for damages, seek injunctions especially if the breach is continuous or forfeit the tenancy agreement.

Occupants can terminate their tenancy by issuing an appropriate notice or by effluxion of time —when the agreed period expires.