Legal Clinic: Do tenants have a right to protest against rent increment?

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Dear Wakili

I am a tenant in downtown Nairobi, and I am concerned about rent increments. The lease is okay, five years plus two months, but rent increases after every two years. My first monthly rent, if my memory serves me right, was Sh65,000 plus VAT. Today I am paying Sh92,800 and it is set to increase in a few months’ time as I write this. Is this in order considering that no changes or improvements are done to the premises within the period in question? I once queried this scenario and was rudely advised that my lease would not be renewed if I continue complaining.

Disturbed tenant

Article 260 of the Constitution which provides interpretation, describes property to include any vested or contingent right to, or interest in or arising from— (a) land, or permanent fixtures on, or improvements to, land; (b) goods or personal property; (c) intellectual property; or (d) money, choses in action or negotiable instruments. In this case we discuss permanent fixtures and improvements thereon. Renting property in residential or commercial premises creates or should, a mutual relationship of tenants and landlords, as espoused in several statutes such as the Law of Contract Cap 23, the Land Act (2012) and Lands Registration Act amongst the laws of Kenya. Tenants and landlords need each other for a common reason; rents paid for space rented, and returns to the tenant for utilisation of space rented.

Tenants and landlords’ relationship is based on obligations and rights that require to be observed, respected and promoted as set out in an agreement or contract. Such obligations and rights are captured and agreed upon by an appendage of signatures of the landowner and tenant on documents legally referred to as leases. A lease agreement is a document that actualises Article 260 of the Constitution as it creates an interest in land or property for defined period of time, in exchange of monetary value or an equivalent known as rent. In strict legal sense it is a contract of absolute possession and profit from land for some definitive time. In the true application of the law, a lease agreement must create and provide for at least five clauses that fundamentally qualify the presence of a tenant in a premise or land, and justify the absence of the landlord or land owner, in a way that shares out equitable benefits to both.

First, the lease agreement must provide for exclusive possession to the property or land for the lessee and even exclude the owner amongst other persons. Such possession must be transferred by the proprietor. Second, it must exhibit certainty of time. This means that the tenant or lessee and the property owner must be able to agree to and define the start and end of the tenant-landlord relationship. Third, the return on the lease for part of, or whole parcel of land or premise, must be clearly defined and agree upon. It must not be second guessed. Fourth, the size, use, identification and position (if it’s amidst other properties of similar descriptions, or its part of a bigger parcel) of the property or premise must be precisely and correctly described in the agreement. Fifth, any lease that is over five years, considered to be long term must be registered by the registrar of lands as provided for at Section 54(5) of the Lands Registration Act.

The law, on the part of the landlord or property owner demands the following: that quiet and peaceful possession is given to the lessee; if the property leased is in part of a bigger estate, the use of the remaining bit, must be in a manner that enhances the purpose for which the lease was originated. In essence, it is to ring fence the purpose for which the lessee took possession of the said property or premise. Similarly, the use of the adjacent property or premise must not render the leased section unfit for purpose; that the property, at all times must be habitation compliant; and finally, the landlord must pay all rates, taxes due, and outgoings except to the extent otherwise specified in the lease agreement.

The lessee, is expected to pay rent as scheduled in the lease agreement, use the leased property in the manner specified and in tandem with conditions set forth, besides maintaining of land and buildings to match their state at the point of entry, save where deterioration caused by reasonable wear and tear or uncontrollable acts of natural forces.

Lease agreements are contracts that bind the parties. It is likely you boxed yourself into this situation, by not reading and internalising the terms of your lease agreement. However, there should be remedial clauses in situation like yours. If for instance, the property has become unfit for the purpose for which you leased it, you should be able to give notice for termination. Secondly, if the increment in rent does not sound as what was agreed upon and signed for in the lease, there should a conflict resolution mechanism in place to try and resolve such a matter. Thirdly, there should be a clause that explains the express exit mechanisms should either party be unsettled, unsatisfied and unhappy with the relationship.

Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]