Updated: Apr 14, 2020
To begin with, leases and rental agreements are drafted by the lawyers representing the landlord or his agent and bearing this on your mind you should never assume that it was drafted to your advantage. In simple statements, these agreements are drafted in favor of the landlord maximizing his rights while at the same time minimizing his responsibilities.
Additionally, the same agreement is drafted in a way that it pronounces your responsibilities while gravely minimizing and trivializing your tenancy rights. Based on this presumption, the terms and conditions provided for on these agreements are not permanent and therefore can be negotiated to achieve a reasonable bargain.
The first trick of the trade is to create a strong rapport with the landlord and ensure that you understand each other on grounds of familiarity by giving him reasons to like and trust you. This is not to say however that you should use your financial muscles to get him dancing your tunes, the trick is in winning his trust for who you are as opposed to what you have. This friendship makes him more considerate on some unfavorable clauses in the agreement.
Negotiating your Tenant's Rights in a Lease
It is paramount for you to understand that in any lease or rental agreement no matter how big, bulky or sketchy it is, there are four types of clauses that should guide you in negotiating a lease or rental agreement.
The first category contains the guaranteed legal rights. These rights are provided for under Chapter four of the Constitution on Bill of Rights and other statutes such as under Lands Act, Distress for Rent Act, Landlords and Tenants (Shops, Hotels and Catering Establishments) Act, and Public Health Act among others. These rights are a preserve of the constitution and cannot be taken away any person including the landlord regardless of whether they are written in the agreement or not.
Such rights include but not limited to; right to clean water, freedom from any form of discrimination, right to clean environment and the right to live in a habitable, secure building. While negotiating, it is critical not to engage more on these guaranteed rights but instead focus on the other categories of clauses where much gain can be realized.
The second category of clauses are those detailing negotiable rights provided under the law such issues as notice period for termination of tenancy, duration for distressing for rent, rent payment dates among others. Issues covered under these clauses are those that despite being provided for by the law, the landlord have an option to extend their application to a certain time of his discretion.
For example, Under the Distress for Rent Act, the landlord is allowed to distress for rent if the tenant defaults in paying rent three month consecutively. Despite this legal provision, the landlord may choose to distress for rent after four months instead of three.
Additionally, under periodical tenancy where the tenant is expected to pay rent after every month, the landlord may choose not to collect the rent on the last day of every month and instead give a grace period of five more days for the tenants to pay. As a tenant you should consider negotiating these clauses and come to an agreement with the landlord.
Third category involves illegal clauses which are those that limits or tends to curtail your legally guaranteed rights. What normally happens is that some witty and cunning landlords try to re-write your rights with the aim of circumventing the law to their favor.
They are also clauses intended to limit the responsibilities of the landlords like those claiming that the premises are not warranted as safe, secure or in good repair. Others state that you cannot hold your landlord liable for injuries that you may suffer as a result of the landlord’s negligence or carelessness.
If when negotiating the landlord does not strike such clauses out, then even after you sign the agreement, the courts will not enforce such clauses and the landlord will end up losing. Most landlords more often than not, include these clauses in the lease or rental agreement intentionally and knowingly alive to the fact that they are violating the law.
The forth category includes clauses based on rules and policies that are nowhere stated under any law, they are simply codes of practice or business ethics. In Kenya, most of the clauses in the lease or rental agreements belong to this category since the laws governing landlords and tenants are scanty and silent on various fundamental issues of tenancy.
They include clauses on the security deposit, use and refund; eviction notices; privacy; repairs among others. In order to get a good bargain, you should ensure that you negotiate with your landlord immensely on the second, third and forth categories clauses. You should also learn how to place a certain clause in the right category so that you are in a position to negotiate knowing whether they are negotiable or not.
In concluding your negotiations with your landlord, you should have a written version of the negotiations signed and dated. You can also be categorical and indicate the specific date and timeline that the landlord has agreed to do some repairs or improvements. This will come in handy in holding the landlord accountable in case he fails to do as agreed.