Rental property is a property from which a landlord receives payments from a tenant. Rental properties may be either residential or commercial. The rights and obligations of both the landlord and the tenant in a rental property can be found in a lease or tenancy agreement. These documents are subject to statutory and common law rules.
In this article, I will show you the statutory and common law rules that every lease or tenancy agreement is subject to whether oral or in writing and how a landlord or tenant can use these rules to protect their interest or seek legal redress.
a) covenant for quiet enjoyment;b) the obligation not to derogate from the grant;c) the obligation to pay rent;d) the obligation not to commit waste;e) the landlord''s right to enter to view the state of repair;f) the safety or fitness for habitation
Please note that the common law rules are also implied by the Conveyancing Act. The difference is that the covenants implied by common law may be implied if there is no express provision in the lease or tenancy dealing with the issue.
However, the covenants implied by the Conveyancing Act if it is an absolute one, will apply invariably regardless of the express terms of the contract. For instance, it is an implied covenant in the Conveyancing Act that a landlord cannot contract out of the implied covenant by removing his personal liability.
Thus if a landlord attempts to remove his personal liability by stating in the tenancy agreement or lease that "he shall not be liable if the land conveyed is encumbered", such a covenant will be void because it removes the landlord''s liability.
The upside of the covenants implied by common law is that they apply if the lease is oral and if it was not created for valuable consideration but the covenants implied by statute apply only if the lease is in writing and was created for valuable consideration.
The third rule is that the Rent Act allows a landlord or tenant of premises or any person interested in premises to apply to a rent officer for an assessment of the recoverable rent of those premises.
Recoverable rent is the maximum amount that a landlord may lawfully receive for premises. For the purpose of the recoverable rent, premises are classified as furnished and unfurnished, and different formulae are applicable to them.
Section 10 of the Rent Act provides that, a landlord or tenant of premises or any other person interested in the premises can apply to a rent officer to assess the amount of recoverable rent of those premises.
Unless under very limited situations specified under the Rent Act, the rent officer cannot entertain an application for an assessment of a premises. The limited situations specified in the Rent Act include if an assessment has been made previously by him or the appropriate Rent Magistrate.
According to the courts in Andrew v. African Automobile [22/12/2004] Suit No. L249/98, the power of the rent officer in assessing recoverable rent is limited to the four walls of the lease and there is no room for any interpretation outside the lease.
That case was about a rent officer who had attempted to interfere with the terms of the lease in spite of an express rent review clause because he found the existing clause unconscionable in the light of the inflationary trends then. The courts agreed that the rent together with the review clause had become "insignificant and unconscionable".
That notwithstanding, the court held that the rent officer in assessing the recoverable rent had no mandate to vary the terms of the lease. It further held that the power to interfere with a term of a lease was not with the rent officer but with the courts.
The fourth rule is that section 18 of the Conveyancing Act affords a landlord or tenant the right to go to court to seek a variation of the terms of a lease on grounds of exorbitance. Therefore in Andrew v. African Automobile above the landlord in seeking to vary the terms of his lease because he believed he had been cheated should have gone to the courts for redress and not the rent officer.
For a landlord to eject a tenant on grounds of non-payment of rent, the rent must be lawfully due. Rent cannot be lawfully due if it is rent in excess of the recoverable rent or if the tenant failed to make an advance payment of rent of one year in a yearly lease because the law permits the payment of only six months rent advance.
Also, the Conveyancing Act provides that a right of re-entry or forfeiture under a provision in a lease for a breach of a covenant, condition or an agreement in the lease is not enforceable, by action or otherwise, until the lessor serves on the lessee a notice, specifying the particular breach complained of and requiring the lessee to remedy the breach, if the breach is capable of remedy, the lessee has knowledge of the fact that the notice has been served, and the lessee fails, within a reasonable time after the service of the notice to remedy the breach, if it is capable of remedy.
There is however a limitation on this right of a statutory tenant in the Rent Act. The Act provides that the statutory tenant''s right is a personal right to retain possession of the premises and it cannot be assigned nor does it pass on to his personal representatives upon his death.
The effect of the determination of a statutory tenancy on a sub-tenancy was stated in the case of Dhalomal v. Pupulampu [1984-86] 1 GLR 341-366 where the court held that "when a statutory tenant sub-lets part of the premises, he does not thereby confer any estate or interest on the sub-tenant. When the statutory tenancy comes to an end, the subtenant’s right automatically comes to an end unless there is some statutory protection afforded him.
The seventh rule is that where a rented premises has been recovered from a tenant or an order or judgment for ejectment has been obtained against a tenant, the recovery of possession or ejectment of a tenant shall not affect the right of any subtenant to whom the premises or any part thereof were lawfully sublet before the proceedings for recovery of possession or ejectment were commenced to retain possession and every such order or judgment shall declare whether it shall be enforced against a subtenant or not.
However, in cases where the premises were not lawfully sublet a subtenant could not avail himself of this protection. In Dhalomal v. Pupulampu for instance, the court stated that if you want to take advantage of this protection then you must prove that the premises were lawfully let to you.
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