Why a written tenancy agreement is necessary in Kenya

Importance of a written rent Agreement in Kenya
A rent agreement is an important document which defines the relationship between a landlord and a tenant. Often, we do not realize that the words written inthe agreement can decide whether the relationship of the landlord and tenant willbe that of a long-term friendship or will end on a sour note. Most of us who have ever taken a house or property on rent or rented out a property, have experienced some form of friction during the course of tenancy period.

Having a tenancy agreement is vital for any landlord. It's so important to get the tenancy in writing as it protects your property, sets out your obligations and that of your tenant's, plus it prevents potential disputes between you and your tenant in the future.

Although there is no legal requirement for you to create an assured shorthold tenancy  in Kenya,all landlords should ensure that their tenants have signed a written tenancy agreement prior to letting them into the rental property.

Common Issues
Some common issues that turn into friction and sometimes into legal troubles later:Undue rent increases by the landlord.Not defining clear responsibilities for major and minor maintenance charges between Landlord and tenant.Frequent inspections/ interruptions bylandlord that might irritate tenant.Tenant (eg. students, bachelors) creating nuisance in premises and thus disturbing neighbors.Tenant not paying rent on time.More no. of people staying in the rented premises than were agreed to.Tenant not vacating the premises even after the completion of lease period.Landlord not paying property taxes, loan etc. on time. Tenant getting unnecessary notifications from municipal corporations and banks etc.False representation by landlord about facilities available (eg. Parking, power back-up, furnishings etc.).Tenant carrying out commercial or illegal activities from residential premises.I have highlighted some common issues that arise between landlord-tenant relationships. I am sure there can be more number of such issues.

Many people who live in rented houses sometimes have to put up with inconsiderate landlords and agents.
Dramatic rent increases, withheld deposits and shoddy maintenance of  houses are some of the issues those renting homes face. Indeed, cases of tenants being thrownout without due legal procedures being followed arecommonplace.There is also a worrying trend in communal living spaces where some landlords and agents decide when the gate should be closed, and when tenants can access certain amenities. Such things happen mainly because many tenants do not know their rights.

Ideally, the role of an agent is to manage the property on behalf of the landlords – getting new tenants, collecting rent, clearing those who vacate and carrying out repairs. Sadly, most Kenyans have had nasty experiences with agents, a situation that is increasingly making landlords opt to manage their own property.If tenants knew their legal rights and exercised them, they would reduce friction between them and landlords or housing agents.

Tenancy Agreement
Before a tenant moves into the new premises, he or she and the landlord should sign this agreement to show that they know what is expected ofthem. Strangely, many tenantsdon’t bother to sign such a document.

The disadvantages of not getting it in writing
*.If you make arrangements informally with your tenant, there may be arguments later about the tenancy terms, even if these were clearly discussed when the tenant moved into the property.
*.Once a tenant is in occupation, you cannot then force them to sign an agreement that varies the terms of their tenancy, so it's essential that this is done before the tenant goes in.
*.You will not be able to use the accelerated possession procedure to evict the tenant, where there is no written agreement.

The advantages of getting it in writing
*.A formal agreement protects your position and regulates the tenant's use of the property.
*.If you intend to take a damage deposit, which has to be protected under one of the statutory tenancy deposit schemes, you will need to make an agreement.
*.If no written tenancy agreement is provided, you're required, by law, to provide the tenant with written details of the main terms of their tenancy within six months; so you may as well provide a proper written agreement to begin with.
*.Housing Benefit offices require tenants claiming benefit to produce a signed tenancy agreement.

A tenancy agreement is important because it covers most of the contentious issues.You’ll find that a normal standard tenancy agreement defines the premises that you are leasing and the scope of the premises. For example, if it is an apartment, it identifies the unit you are leasing and also  states that you are entitled to use the common areas because it is not a standalone property.
The  the document clearly stipulates the lease period, as well as theamount to be paid as rent and as deposit. Generally, most landlords ask for two or three months’ deposit and indicate the tenant’s obligations.“Some landlords will include some provisions like renovation say, every year. If the tenancy is being terminated, you have to restore the house to the condition you found it in.

Start addressing tenancy questions fromthe moment you get interested in leasing a property. Discuss the monthly rent, length of tenancy, security deposit. The list is endless. Don’t forget to agree on how to resolve disputes arising from the tenancy. Bealert on wording of the covenants during drafting and signing of the agreement, particularly if prepared by theother party.Make sure that any weighty verbal agreements are captured in the written agreement. The obligationsof both parties should be explicit unless implied by law. Some of the questions, which should be answered about repairs and maintenance include, but is not limited to the following. Who is responsible for structural repairs? Who isresponsible for running repairs and maintenance?

Lettings not needing an Agreement
Although all tenancies should have a formal written agreement, licences don't always need them. For example, written agreements are not necessary in the following circumstances:
*.Letting a room in your house to lodgers. However, we still do advise you to get it in writing with a Lodger Agreement.
*.Bed-and-breakfast accommodation.

But even if a formal tenancy agreement isn't provided in these circumstances, there should always be some paperwork to prove the terms of the letting, in case there is a dispute at a later date.

Professional Rent Agreement Formats
Most of the landlord-tenant issues can be easily dealt with by signing a comprehensive rent agreement so that both landlord and tenant are at ease upfront rather than dealing with issues later.