COMMENTS ON THE LANDLORD AND TENANT BILL, 2018

ISSUE

OBSERVATION

COMMENT

THE LANDLORD AND TENANT BILL 2018

2

Interpretations

“rent”

The clause defines rent to mean

the amount paid to a landlord by a tenant to occupy premises and use facilities and services. There are however, other payments that may result from the tenancy relationship which are not in principle rent and thus need to be clearly excluded from the definition.

In bid to provide for clarity we propose to adopt the following

definition for the term “rent”;

Proposed Amendment

Interpretation (1)

“Rent” in relation to a tenancy, means the amount paid to a landlord by a tenant to occupy premises and use facilities and services except special deposits and reimbursement of costs, to be made to the landlord under the rental agreement.”

Justification

To provide for clarity as the current definition seems to encompass payments for deposits and damages which may arise out of a tenancy relationship but when not in the actual sense rent per se.

ISSUE

OBSERVATION

COMMENT

“special

deposit”

“Court”

Whereas the Bill under clause 32

and in several other clauses refer to the term special deposits, no effort was taken to provide a definition for the same. As such, this may result inappropriate application and lack of clarity in the usage of the term.

We note that the Bill is intended to regulate the conduct and relation of landlord and tenant country wide. As such requiring a tenant or a landlord to seek redress from the chief magistrate’s court my compound on the problem of case backlog and in any case for more complicated matters, the High Court would still have jurisdiction over such matters.

We therefore propose to have a definition for the term “special

deposit” as below;

Proposed Amendment

Interpretation (1)

“Special Deposit” means any refundable deposit of money that is furnished by a tenant to a landlord to secure the performance of the terms and conditions of a rental agreement, as a security for damages to the leased premises.

We therefore propose to have a definition for the term “Court” as below;

Proposed Amendment

Interpretation (1)

“Court” means a Grade I Magistrate’s court.

7

Clause 7(1)

The clause provides for an implied

We suggest to delete the words “there,” replace it with “it” and

Duty to keep

term in every tenancy, however,

delete the words “ a very” and replace them with “every” for the

premises in

there is a typo graphical error

clause to read as follows;

repair

which may change the meaning and intention of the clause

Proposed Amendment

Clause 7(1)

“Subject to section 8, it is implied in every tenancy a term that the

landlord shall keep the premises maintained in good repair.”

ISSUE

OBSERVATION

COMMENT

Justification:

To ensure clarity.

9.

Circumstances

where tenant may repair premises

Clause 9 (3) provides for a tenant submitting to the landlord a written notice of the repairs carried by the tenant.

Whereas this proposal is a

welcome, there is need to ensure prudence and accountability by the tenant. One would wonder why a landlord under clause 8(5) would be required to furnish a tenant with particulars of costs of repairs done including supporting evidence for the same in circumstances of where the tenant damaged the premises but the same requirement is ignored for the circumstances where the repairs are done by the tenant.

We propose a similar requirement for evidence and account of costs

incurred in instances of repairs whether by the tenant or the landlord to be the same. We thus propose to amend clause 9 (3) by deleting the words “the costs incurred” and replacing them with “the particulars of the cost of the repairs including the relevant supporting documentation to evidence the cost of the repairs”

We further propose to insert immediately after the word “notice” the following words “and evidence of costs of repair”

For the clause to read as follows;

Proposed Amendment

Clause (9)(3)

“Where the tenant carries out repairs under subsection (1), the tenant shall immediately after carrying out the repairs give the landlord written notice of the repairs carried out and the particulars of the cost of the repairs including the relevant supporting documentation to evidence the cost of the repairs and the landlord shall within fourteen days after receiving the notice and evidence of costs of repair, reimburse the tenant for the costs of the repairs.”

Justification:

This is intended to ensure that since reimbursement are tied to specific costs, refund to the tenant should strictly be based on evidence of costs incurred.

ISSUE

OBSERVATION

COMMENT

28

Rent increase

to take effect if tenant does not object or negotiate Clause 28

This clause of the Bill provides for

rent increase by the landlord and the tenant would be taken to have accepted the increase if the tenant does not object. However, there is no clear procedure or guidance on how a tenant would object.

We propose to include clause 28(2) immediately after the current

clause 28 the following:

Proposed Amendment

Clause 28(2)

“Objections relating to increase in rent shall be in writing within fourteen (14) days after receiving the notice for increase in rent.”

Justification

To provide for a clear procedure for objection.

29

Decrease of

rent in certain case

The clause introduces a very tricky

situation which may not be accommodated by the parties intended to target. One wonders why decrease in rent should only be as a result of cessation in provision of certain services. What about decreases resulting from a macro economic perspective that may bring property rates down? In free market economy the invisible hand should be let to operate.

We propose to delete clause 29

Justification

Decrease in rent should be guided by macro- economic dynamics the law cannot provide exhaustively for all circumstances that may justify a decrease in rent.

32(5)

Security

Deposit

The Bill requires all moneys paid as

security deposits to the landlord to be deposited by the landlord in a trust account. Important to note is that the law concerns all landlords and tenants of all sorts without any

We propose to have clause 32(5) to be dropped.

Justification

Matters of proof of payment of the special deposit should be left to be handled within the tenancy agreement.

ISSUE

OBSERVATION

COMMENT

significant segmentation; whether

by region, rental earnings or otherwise.

The requirement of having a trust account is being suggested in a country where the bankable population with formal commercial institutions is estimated at 34% (2018 FinScope Survey).

Such a provision may be impractical especially for the landlords in a rural setting.

33

Assignment of

tenancy by tenant Clause 33

The clause provides for

assignment of tenancy by a tenant

Whereas this particular clause

provides for matters of assignment of tenancy in respect to seeking of consent no further detail is provided to give guidance on terms and conditions that arise after assignment

We do propose insertion immediately after clause 33(2) the following;

Proposed Amendment

Clause (33)

3. If a tenant has assigned a rental premises to another person, the tenancy agreement continues on the same terms and conditions and,
   1. the assignee is liable to the landlord for any breach of the tenant’s obligations and may enforce against the landlord any of the landlord’s obligations under the tenancy agreement or this Bill, if the breach or obligation relates to the period after the assignment, whether or not the breach or obligation also relate to the period before the assignment;
   2. the former tenant is liable to the landlord for any breach of

the tenant’s obligations and may enforce against the landlord

ISSUE

OBSERVATION

COMMENT

any of the landlord’s obligations under the tenancy agreement

or this Bill, if the breach or obligation relates to the period before the assignment;

(c) If the former tenant has started a proceeding under this Act before the assignment and the benefits or obligations of the new tenant may be affected, the new tenant may join or continue the proceeding.

Justification

To match the respective liabilities to the periods to which they relate.

Clauses 33 and

36

Clause 33 provides for assignment

and Clause 36 provides for the application to assign and the form that should be completed. However, whereas the landlord’s consent in assignment of a tenancy and subletting of premises is required, there is no clear provision on how such consent would be communicated.

We propose to include a clause immediately after the current clause

36, clause 37 and re-number the rest chronologically.

Proposed Amendment

Clause (37)

“Consent to assign or sublet to be in prescribed form

Consent to assign the tenancy or sublease the premises by a landlord under this Act shall be in the form prescribed by the Minister by regulations.”

Justification

To ensure clarity in procedure.

ISSUE

OBSERVATION

COMMENT

42(5)

Termination by

abandonment

Clause 42(5) provides for

circumstances when a tenant would be deemed to have permanently abandoned the premises. However, in Clause 42(5)(a) a tenant is deemed to have permanently abandoned premises when the tenant has been absent from the premise for at least 30 consecutive days without notifying the landlord and the rent has not been paid; Clause 42(5)(b) at least 15 days have passed since the rent was due and rent remains unpaid…..

We propose to join the requirements in Clause 42(5)(a) and (b) by the

word “and” for the clause to read as follows;

Proposed Amendment

Clause 42 (5) “For purposes of subsection (1), a tenant is taken to have permanently abandoned the premises where –

1. the tenant has been absent from the premises for at least thirty consecutive days without notifying the landlord and the rent has not been paid; and
2. at least fifteen days have passed since the rent was due and the rent remains unpaid and it appears to the landlord that the tenant has vacated the premises without the rent being paid.”

Justification

This would give the landlord sufficient time to conclude whether the tenant has abandoned the premises or not.

46

Clause 47

Clause 46 and 48 seem to provide

We propose either of the clauses to be dropped.

and

Vacation of

for the same aspect of obtaining a

48

premises on

court order in circumstances when

termination of

a tenant fails to vacate the

Justification

tenancy and

premises on receipt of notice of

Clause 48 Court

termination.

To ensure clarity

order required

to evict tenant

55

Record Keeping

Clause 55

This should be a clause to provide for

A critical analysis seems to portray

a picture of fewer requirements placed on keeping of records. Studies have shown a lot of taxes being lost through tax evasion due

We propose to insert clause 55 and re-number the rest for the clause

to read as follows:

Proposed Amendment

ISSUE

OBSERVATION

COMMENT

record keeping.

to lack of appropriate records by

the landlords. We then wish to require a clear provision within the law for the landlord’s records regarding the tenancy

Clause 55: Record of the payment of rent

1. Every landlord or his agent shall keep a rent book for the premises, in such form as the Minister may approve.
2. The rent book shall contain;
   1. details of the parties to the tenancy
   2. the rented premises,
   3. the rent payable, and;
   4. a record of all payments of rent made.

3. The landlord or his agent shall sign each entry in the rent book.
4. A landlord who contravenes the provisions of this section commits an offence and is liable upon conviction to a fine not

exceeding one month’s rent of the rented premises.

Justification

To curb the challenge poor record keeping among landlords