New Landlord-Tenant Law Will Outlaw Seizure Of Defaulting Tenant’s Property

In the wake of brutal evictions over non-payment of rent during the pandemic, Parliament is set to debate a bill that seeks to create a level playing field for real estate stakeholders.

The Landlord and Tenant Bill 2021, which has been amended by the National Assembly Transport, Public Works and Housing Committee, permits landlords to give tenants just one month notice to vacate their premises in case of failure to pay rent.

The original bill, which was sponsored by Leader of Majority in the National Assembly Amos Kimunya, proposed that landlords terminate tenancy in situations where the tenant fails to pay rent in three consecutive months.

This means that, if the proposal by the committee is adopted by Parliament, a landlord will have a right to evict a tenant who fails to pay rent for just one month.

However, a landlord will not be allowed to seize a tenant’s property for default in the payment of rent, or for the breach of any other obligation of the tenant without legal process.

“A landlord who evicts a tenant without the authority of a tribunal or wilfully subjects a tenant to any annoyance with the intention of inducing or compelling the tenant to vacate the premises or to pay a higher rent for the premises commits an offence,” the draft law says.

If the Bills sails through, landlords will not be allowed to change the locks, install deadbolts, take off doors, or do anything to stop defaulting tenants from accessing their homes.

They will also not be allowed to shut off utilities to force tenants to pay up their dues.

“No landlord shall, without legal process, seize a tenant’s property for default in the payment of rent or for the breach of any other obligation of the tenant,” the Bill says.

Records of Rent Payments

The draft law further seeks to compel landlords to keep signed records of all rent payments and to share a copy of the record with the tenant. A fine not exceeding one month’s rent will be imposed on any landlord who violates this obligation.

Even where a tenant dies or walks out on the premises while in rent arrears, a landlord will have to apply to a proposed tribunal to dispose of the belongings of the departed tenant. This will only be approved after an inventory of the items is taken by an officer of the tribunal.

Excess proceeds from the sale of the tenant’s belongings can be claimed by the next of kin or an administrator of the deceased estate within six months of the auction.

Receipts of Repairs

The committee has proposed that departing tenants must be issued with receipts of repairs done before any amount can be deducted from their security deposits.

“A landlord shall provide a tenant with receipts for reasonable expenses incurred for repairing premises that the landlord proposes to deduct from any security deposit held,” reads the report that is set to debated in Parliament.

The Landlord and Tenant Bill 2021 is expected to repeal the Distress for Rent Act (Cap 293), the Rent Restitution Act (Cap 296) and the Landlord and Tenant (Shops Hotels and Catering Establishments) Act – merging them into a single law.

Five-Member Tribunal

The Kimunya Bill proposes the creation of a five full-time member tribunal that will be headed by an individual qualified to be appointed High Court judge and a deputy chairman who has served as an advocate of the High Court.

The other members will be experts in valuation of premises.

So powerful will be the tribunal that it will give rulings that are binding for both landlords and tenants. The tribunal can, for example, assess or modify the rent payable for a premise as well as tenancy period.

The tribunal can also determine the service charge payable on a property, the amount each tenant should pay and demand the payment of rent arrears or service charge.

It will also have the powers to compel landlords to renovate their buildings or authorise tenants to pay for the repairs and deduct the same from their monthly rent.

Landlords who fail to comply with the provisions of the law will be liable to a fine of up to Sh100,000 or a one-year jail term or both. Failing to honour summonses of the tribunal will attract a six-month prison term or a Sh10,000 fine, or both.