How ignorant tenants are being exploited by greedy landlords, housing agents.

Of late, so many residents (tenants in this case) have been complaining of gross misconduct and financial rip-off by landlords and real estate agents.

Being a tenant in Kenya is a great challenge not only because you have to part with a given amount of money at the end of every month but also because at times, some landlords tend to treat their tenants like children.

Property owners and their agents have been harassing and manipulating tenants with impunity. Cases of tenant harassment range from being thrown out in the middle of the night to arbitrary rent increases, very high water/electricity bills and withholding deposit in case a tenant wants to relocate. These people take advantage of ignorant tenants who have little knowledge about their rights.

Rights of a tenant.
The rights and obligations of both tenants and landlords stipulate that the tenant has a duty to pay rent and respect the terms and conditions under which the premises were rented out to them. They are also entitled to quiet and exclusive enjoyment of their home as well as certain minimum standards of accommodation.

The landlord or his agent is only allowed to enter the tenant’s home with their permission. For instance, if the landlord needs to carry out repairs or inspect the premises, it should be by prior arrangement, except in an emergency.

The tenant is also entitled to reimbursement for any repairs that they carry out that are the landlord's responsibility and cannot be restricted from hosting visitors either overnight or for short periods, unless specifically forbidden in your tenancy agreement.

It is also the tenant’s right to be accorded a certain amount of notice of the termination of your tenancy and in our case in Kenya, it is three months.

Tenancy agreement.

Before renting a house, the tenant should ensure they sign a tenancy agreement drafted by a lawyer so that their agreement with the landlord is grounded in law.

The agreement helps in structuring the tenant’s relationship with the landlord and also helps the landlord manage their relationship with the tenant. If nothing is put down in writing this is why you see these unnecessary increases in rent where the landlord just decides to increase rent whenever they feel like.

It also protects the landlord because the tenant can also decide to leave the house with no prior notice. This will make the landlord loose some revenue.

Each tenancy agreement must have a default clause stipulating what needs to be done in the event a tenant fails to pay rent. In most instances, a tenant is given a 30-day notice to make good their default failure to which the landlord can re-enter (exercise their right of forfeiture) the premises and take possession of the same after the expiry of the 30 days’ notice. It will be unlawful if eviction is done before the notice is issued.

However, it is important to note that most of the disputes are as a result of poor communication. It is therefore always important for the tenant to build a good relationship with the landlord, be open and transparent. If they are experiencing financial difficulty, they need to approach the landlord before they come to them.

DISCLAIMER: The agreement must have a period of notice in which the premises can be vacated. These agreements must state the rent and of course put in place a period for which the rent is to be reviewed. 

Before you enter a new house.

Before the tenant moves into the new house, it is prudent that they do a research on the new premises to know if the plot has water frequently, cleanliness, terms of rent increase, if the landlord is quick at returning deposits, among other things. They should also be aware of certain rules that exist in the landlord-tenant agreement such as time to close the gates and rent payment methods.

Finally, they should plan in advance, of their exit from the premises which mainly deals with termination of the tenancy agreement.

Rent increment.

In proper tenancy agreements, the percentage by which rent will be increased, and after how long, must be indicated in the tenancy agreement.

Deposits.

In most premises, prior to occupancy, the tenant normally pays one month’s rent in advance as security deposit. The deposit is refunded if the property is returned in its original condition at the end of the contract.

Termination of contract.

If any landlord is not satisfied with the behaviour of a tenant, they must give them notice to vacate that is spelt out in the agreement. They cannot just wake up one day and command them to leave. The landlords must use legal means to evict the tenant. 

All evictions must only be done by a court of law and not by agents, caretakers or landlords. Incidents of eviction where a caretaker or agents come with goons in the wee hours of the night are illegal. They must also refrain from using illegal means such as beating up the tenant, confiscating property and locking up the premises, in which case the tenant may take legal action against the landlord. 

Section 76 of the Land Act, however, stipulates what relief a tenant has against the landlord and section 77 allows the tenant to commence action against the landlord for unlawful eviction.

The landlord can sue the tenant for failure to pay rent or if the tenant’s term has expired but has refused to vacate the premises. They can also chose to voluntarily refund to the tenant the amount of money paid in rent. 

There is also the tendency for either a tenant or landlord to involve the police when eviction disagreements emerge between the two parties though the police do not have a role to play because the relationship between a tenant and landlord is not a criminal but a civil matter.

If a tenant fails to pay rent as per the agreement, the law states that they supposed to be given a reasonable notice of eviction.

Causes of eviction.

One of the most common causes of eviction of tenants by landlords is the tenants’ failure to pay their rent where the landlord is entitled to recovering rent due to them from the affected tenant. The landlord can also evict a tenant for misuse and damage of property.

Among the reasons that can be classified as misuse of property include a tenant carrying out activities within the premises that are contrary to the law such as drug trafficking etc.

It is the landlord’s right to make sure his property is not devalued because of the tenant’s activities. No tenant is permitted to conduct activity within the premises that would reduce the value of the property or activities that would make certain people less interested in occupying such premises.

A tenant is liable for prosecution in courts of law on causing malicious damage to the property. Malicious damage may include pulling out of doors or windows from the house.

Eviction process.

• A tenant is given a three months’ notice but the parties can agree otherwise in advance.
• The three months’ notice must be in written form for clarity and future reference.
• After expiry of three months and the tenant has failed to heed the call, the landlord should file an eviction order from court.

Long-term rentals usually last for one to two years. If the landlord or the tenant decides to terminate before the contract’s expiration, a notice must be served three months prior to vacancy.

The landlord can seize the tenant’s possessions if the tenant is unable to pay rent, under the Distress for Rent Act (Cap 293). The tenant must pay within 14 days or else the things will be auctioned to compensate the landlord.

Under the law, only the courts can order an eviction of tenants. Landlord and tenant disputes are heard by Rent Restriction Tribunals, though in theory, their authority is limited only to rent-controlled units. But most the cost of bringing cases to the tribunal discourages their use. Another problem is the backlog of cases in the tribunals. The lack of a proper forum for hearing disputes works in favour of 
landlords.

EVICTION FOR NON-PAYMENT OF RENT
Duration until completion of service of process
12
Duration of trial
122
Duration of enforcement
121
Total Days to Evict Tenant
255

The Distress for Rent Act (Cap 293) allows landlords to auction the possessions of the tenants for compensation. 

The Rent Restriction Act, (Cap. 296 of the Laws of Kenya) provides rent control for units with monthly rent not exceeding KES 2,500 (US$34.57) as of January 1, 1981.

Rent tribunal.

The Nairobi Rent Tribunal has jurisdiction in Nairobi Area, central, eastern, north eastern regions and Kajiado, Nakuru, Narok, Baringo and Laikipia counties.

About 30% of cases in court are about deposit withholding and due to the manner in which these cases drag on in courts, many give up and write off the deposits.
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