Viable tenancy enforcement system needed

I sat in a court, today, as a lawyer sought to have a land case thrown out with a claim that the lease in hand was not valid as it had never been stamped to show stamp duty: and, thus, no case should be heard.

It was bizarre, because the landlord is responsible for paying stamp duty and the lawyer was representing that landlord. I don’t know if a case can get squashed on an initially illegal letting and there be no penalty for the landlord on that illegality itself. But court cases are a curious and extraordinary journey for we passers-by.

They meander through twists and turns of demanding documents, which require adjournments and rulings and extra time. They get rescheduled because the defendant is busy that day. Even once heard, they require a new date for the ruling, and then further dates to determine costs, and, often, to enforce rulings.

The sum is slow, in a progress that tends to be counted in clusters of years and is compounded by the sheer volume of cases passing through our narrow pipeline of judges and magistrates.

For, most cases for tenants and landlords go to the high courts, and that means waiting. It can take nigh on two years to get to lift off, as the first hearing date from which to begin the long journey through objections and adjournments.

Yet there is a faster way, for low-rent tenants, in the form of the Rent Restriction Tribunal. And, truly, it makes sense to pull these every day cases out of the High Courts. As it is, every plaintiff, and defendant too, sees their own case as uniquely horrible and upsetting and worthy of a judge understanding the horror inflicted. But actually, the vast majority of tenancy disputes are remarkably parallel in actions and point, and pretty simple.

Either the landlord has let the place become dilapidated, the roof leaking, the walls crumbling, or the structure unsafe. Or the tenant has not paid their rent.

There’s another cluster around landlords and tenants who simply are not civil, or argue, over almost anything in fact, and including over sudden rent rises.

And yet another, where the landlord wants the property back for other reasons, to sell, to house family, to demolish, or whatever.

But the everyday wrangling as either tenant or landlord does not observe the contract isn’t rocket science.

Yet the peculiar thing about the landlord/ tenant fast track tribunal, which is part of a process that is necessary to any eviction or seizing of goods in lieu of rent, is that it is only open for properties where the rent is lower than Sh2,500 a month.

I wonder what is different about a Sh3,000-a-month rent that it needs to clog up our overloaded high courts, or even a Sh5,000, Sh8,000, or Sh15,000 rent. Maybe above Sh2,500, not paying rent is more complicated, or a landlord illegally seizing a tenant’s property, or locking them out without a court order, is transmuted into some other, more complex offence.

In fact, it would be make for a far better life for our working classes if the rent bar was set higher on that tribunal route.

For the level of illegality in our voluminous residential rental sector remains comprehensive. Landlords require no qualification to rent out a property, or knowledge of the law: anyone can do it. Nor do tenants have to be law savvy.

Yet with enforcement that involves years in court, there isn’t much that’s going to change about that rental free-for-all any time soon.

Indeed, for most of us, we won’t even have a legal tenancy agreement, it turns out.

Across four homes and two offices, I have never seen a stamped tenancy agreement, so, according to that lawyer, none of those contracts had any legal standing. But can it really be the tenants who police that?

I try to imagine me returning those leases, refusing to move in, until landlords got them stamped. I’m not seeing it having gone too well.

We need a viable enforcement system for tenancies, and we appear to have one, if only we increased its scope, by raising the rent bar.