Case 1: A landlady in Buru Buru, Nairobi, has
had enough and decides to seek guidance from the Rent Restriction
Tribunal. One of her tenants has been missing for six months now and she
does not know how to contact her. The tenant in question just left one
morning and after one month, the landlady assumed that she had travelled
upcountry and would return soon to settle her rent and arrears.
After
two months, the property owner realised that something was wrong and
contacted the tenant, who asked her for one more month to sort out some
issues.
Thirty days later, the tenant could not be
reached on her mobile phone. Uncertain what to do, the landlady decided
to play the waiting game until the sixth months when, tired of waiting,
she visited the tribunal.
The tribunal ruled that the
landlady find a safe place to store the tenant’s household items for
about two months, after which the tribunal would offer guidance on what
to do next.
This, the tribunal’s chairman, Joshua
Korir, stresses, is not distraining of goods to recover rent arrears,
but simple safekeeping of the missing tenant’s belongings. A rent
inspector from the tribunal will be there when the items are moved from
the three-bedroom house.
Case 2: A
tall, slender but stoic man travels all the way from Manyatta estate in
Kisumu to lodge a complaint on house abandonment with the Rent
Restriction Tribunal.
One of his tenants has been away
for eight months now. This means that he has not earned a penny from
one of his houses for close to a year. The house goes for Sh7,000 a
month and one needs to pay a rent deposit of the same amount when moving
in.
Prior to this, the man had entrusted an agent
with the handling of all rent collection and so he hardly came into
contact with his tenants.
When he was informed that a
tenant had abandoned the house for three months, the first reaction was
anger — according to his testimony during the court session — but this
soon turned into despair when he tried in vain to contact the estranged
tenant on his mobile number.
The tribunal issues a ruling similar to that of Case 1 above.
While
these two landlords might have found an avenue to air their grievances
and be offered guidance on what legal steps to take, many out there
choose to sweep it under the carpet and move on because they do not know
how to recover their rent arrears lawfully. This, however, is
disturbing Prof Patricia Mbote, the dean of the School of Law at the
University of Nairobi.
“I don’t know why the landlord
is always portrayed as the bad guy even when he is losing money in some
of these situations,” she says.
According to her,
while there are many sins pinned on the lapels of Kenya’s landlords —
some true, some only half-true — when tenants fail to meet their
financial end of the bargain, the landlord ends up getting a raw deal
because providing residential accommodation is a business, and in
business arrears are not something to smile about.
PROVIDE STORAGE
“My
duty as a landlord,” says Mbote, “is not to provide free storage for
household goods that the tenant has abandoned, but to provide a
habitable environment and ensure that the tenant has quiet enjoyment of
the estate that he or she has leased.
“If the property
owner has provided that satisfactorily, then there is no legal basis to
burden him or her with issues of storage while he or she has kept his
end of the bargain on the tenancy covenant.”
On the
tribunal and its patterned rulings, Mbote commends it, but says it is
only a stop-gap measure that only postpones the problem and often works
against the landlord.
“What we need is a more robust
and clear policy on how to deal with these issues. A policy that can
accommodate all the divergences from the norm and not leave loopholes
that can easily be exploited by any person.”
Dr Jack
Mwimali, a law lecturer at Kenyatta University and advocate of the High
Court, says the law is, strictly speaking, quiet on issues to do with
house abandonment “because the drafters of the Rent Restriction Act did
not envisage it” when preparing the Bill. The Act was enacted in 1979
and revised in 1982.
However, says Nicholas Gibiti,
CEO of the Rent Restriction Tribunal, the team is working on a new Bill
that will comprehensively address issues to do with house abandonment.
“We
started the journey back in 2007 and we are at an advanced stage now,”
says Gibiti, “and house abandonment is one of the clauses in the Bill.”
According
to Mbote, the Bill should provide a reasonable timeline within which
the landlord can recover his or her rent arrears. So, how reasonable is
reasonable?
“It is a case-by-case issue, and one way
of looking into it is considering what the specific tenancy agreement
stipulates in regard to rent deposits.
“If the tenant
was supposed to pay rent plus two months’ deposit — which is normally
the case in many middle- and upper-income residential suburbs — then a
reasonable timeline would be the two months that the rent deposit
covers,” she says.
There is no sense in waiting a few
more months because the landlord might never able to recover the arrears
as, according to her, you find that many tenants normally leave things
that do not add up to much value.
HOUSEHOLD ITEMS
If
that is not the case and there are arrears to be recovered, says the
law lecturer, then there should be a third party to determine a fair
value of the household items in the abandoned house.
“We do not want to trust the landlord because he or she might devalue them,” says Mbote.
A disposal mechanism should also be established. Should one, for instance, use the law of the jungle and auction them?
“No, I don’t think so,” says Mbote. “There are many things that auctioneers ignore which are important to the whole process.”
This,
she continues, includes how to deal with excess value or low value,
where the excess value will be taken, and how you will recover the
remaining amount if the value is lower than the owed rent arrears.
“It’s
a fishing expedition and I think to understand it better, people in
that industry need to acquaint themselves with the law of unclaimed
assets”, says Prof Mbote, adding that, because cases of house
abandonment are rampant, there should be an agency or tribunal empowered
to handle household items instead of burdening the landlord.
On the other hand, she adds, they can be treated as unclaimed assets once every party is satisfactorily compensated
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