HELP!!! My landlord has ripped off the roof of my house by Amanda Nutakor

https://www.myjoyonline.com/news/2018/October-16th/video-landlord-rips-off-roof-of-tenant-over-rent.php

About a month ago, I came across this story on MYJOYONLINE.com. The details are that Philomena Agyarko is a tenant in the suburb of Sowutuom in Accra. Just recently, while she and her family went out, her landlord ripped off the roof of her house for delaying rent payment for a month. They have lived in the house for about six years and have always had one problem or the other with the landlord. Her husband has been really sick and was admitted to the hospital for a while which prompted the late payment of rent because most of the finances have been channelled into hospital bills. The landlord witnessed her husband’s condition, especially when my husband used crutches as  support. However, the landlord said he wants her out of the house. He gave her an ultimatum  to move in a month “but we told him that grace period was small and requested for three months which he denied. All the things in the hall have been damaged because of the rains and I want the law to deal with him. The police picked up our landlord but he has since been granted bail”

I decided to see which cause of action would be available to her and this translated to this write up.

 

 

Dear Philomena Agyarko,

It is very unfortunate to receive such news from you and even more unfortunate for me to say that what you are experiencing is not a novelty in Ghana. Many landlords find opportunities to take advantage of their tenants despite the fact that the law takes into account various situations and gives a lot of protection to tenants.  A lot of people including most tenants in Ghana are not very familiar with the law in relation to landlords and tenants, it is difficult for tenants to stand up for their rights when dealing with their landlords. You have, however, taken a very laudable step to get some information and help on the law in Ghana therefore choosing to fight for your rights rather than give them up.

With this I will thus attempt to help you and hopefully any other person who finds himself or herself in a situation similar to yours.

I would like to start by saying that there are two main classifications of law – civil law and criminal law. Their main distinction is that the object of criminal proceedings is punishment whilst the object of civil proceedings is compensation. You have stated that your landlord had been arrested but was granted bail. The state is the main entity involved in criminal proceedings against accused persons. The state is represented by the police and the prosecution in court thus you landlord being arrested by the police is the beginning of criminal proceedings. However, it might be hard for your problems to be truly remedied by criminal proceedings over which you have little control and I would thus advise you to try to seek compensation through civil law actions which you can initiate yourself as a plaintiff against your landlord who would be the defendant.

I would thus look at your situation from the civil law perspective.

From everything you have said, I believe we have two problems to deal with. The first is your landlord ripping off the roof of the house in which you resided with your family and the second is the fact that the landlord is forcibly attempting to eject you from the same premises.

Your first problem can be resolved with the help of the law on Intentional Interference with Property in the Law of Torts.

Intentional Interference with Property also known as ‘Trespass to land’ is a tort which deals with unjustifiable interference with land in the possession of another. According to Professor Kofi Kumado, the tort protects the interest of the plaintiff in having his land free from physical intrusion. The subject matter of the tort is land and everything attached to it. In this case the subject matter would be specifically the house in which you resided and the roof of which your landlord ripped off.

The tort protects possession which is the power to use the land and to exclude others. Proof of occupation is prima facie proof of possession.

Thus, to succeed in an action in this tort, the plaintiff must prove that he was first of all in possession of the land at the time of the interference. In Wuta Ofei v. Danquah, the plaintiff acquired land which he did not immediately occupy but put pillars on. The defendant built on it. It was held to be trespass. The presence of the pillars was taken to evidence of possession. In your case, you and your family were in occupation of the land. This, on the face of it means you were in possession (that is, you had control over the land and the power to exclude other people from the land) at the particular point in time that your landlord ripped off your roof. The fact that you were at the material time a tenant and not the owner of the house is irrelevant in terms of this tort because it protects possession and as we have already discussed, you were in possession of the house at the material time.

Next, the plaintiff must prove that there was a direct act of the defendant. This means that the act complained of was through the immediate act of the defendant. In the case of Pickering v. Rudd, Lord Ellenborough expressed the view that it is even a trespass to fire a gun into someone’s land or to pass over a man’s land in a balloon.

Then there must also have been a positive act and not an omission to act by the defendant.

It is quite evident that the act of ripping your roof off done by your landlord, was a direct rather an indirect act and a positive act rather than an omission to act. This is because from everything you have explained, the landlord ripping off your roof was through an immediate act of his and not as a result of a consequence of his act. Also, your roof being ripped off was not as a result of an omission on the part of your landlord but as a result of positive act of his.

Another element you, as the plaintiff, must prove is that the act of the defendant was voluntary. This means that the presence of the defendant on the land was through his own volition. In the case of Smith v. Stone, an action was brought against Stone for trespass to Smith’s land. Stone pleaded that he was forcibly carried onto Smith’s land by others and did not go there on his own volition. Justice Roll held that the trespass was committed by those who carried Stone onto Smith’s land and not Stone.

I believe from your description of the facts, that your landlord was not physically carried unto your land and forced to rip off your roof. Thus, his act can be said to have been voluntary.

You must also prove that there was a lack of your consent to the actions of the defendant, meaning that interference with the land was without your leave and license. So if a person is on somebody’s land with their permission, then that person commits no trespass. A person can however become a trespasser if the land owner revokes their licence and they still remain on the land after, as was held in the case of Robson v. Hallett.

You stated that you and your family were at work when your roof was ripped off and your reaction once you found out what happened would presumably have been one of shock and horror. This clearly shows that your landlord entered the land and ripped off the roof of the house on the land without your consent.

Another element the plaintiff must prove is that the defendant acted intentionally or negligently. From your description of your situation with your landlord, it can be presumed that your landlord acted intentionally in order to have you move out of the house because you were delaying in paying rent. Thus this element would be satisfied.

The last element you must prove to succeed in an action on Intentional Interference with Property is physical interference with the land. In the case of Perera v. Vandiyar, the plaintiff was a statutory tenant. To evict him, the landlord cut off the supply of gas and electricity to the house from his end of the premises and the tenant was forced to leave. After a week, the supply was reconnected. In this case the court held that there was no interference with any part of the premises and therefore no action in trespass. This case is quite similar to the situation you are going through if not for the fact that there was no physical interference with the land in the case.

The case of Lavender v. Betts is however closer to your situation. The defendant in that case rented to the plaintiff a flat on a weekly tenancy basis. The plaintiff was making irregular payment of the rent and fell into arrears. After about two years, the defendant served a notice to quit on the plaintiff who ignored the notice and continued in possession. The defendant then gave instructions to men he had brought with him to remove all the doors and windows of the house, with the result that the plaintiff could live in it only at considerable discomfort and danger to his health. The plaintiff sued for trespass and breach of the covenant for quiet enjoyment. It was held per Lord Atkinson that the plaintiff must succeed and punitive damages would be awarded.

 

Thus, from the discussion of the law and your particular situation it can be said that you could succeed in an action in Trespass to land.

One of the purposes of this tort is to provide damages (compensation) to the aggrieved party and according to Professor Kofi Kumado the tort action will succeed without the necessity of proving actual damage. Thus you would be able to obtain damages for the trespass committed by your landlord unto the land in your possession.

In addition you might even be granted more compensation in respect of actual damages suffered by you and your family such as discomfort and lack of security due to sleeping in a house without a roof and the fact that the things in the hall of the house have been actually damaged because of the rains.

 

Now we can move to your second problem which is the fact that your landlord is forcefully attempting to eject you from the house which you rented from him.

We can look at this problem from the perspective of Immovable property law specifically the landlord and tenant relationship law and the law on rent.

Under this area of law, you would be classified as a lessee/tenant/transferee and your landlord would be a lessor/landlord/transferor. What brings a lessor and lessee together is something called a lease.

Section 36 of the RENT ACT, 1963 (ACT 220) defines a “lease” to include an agreement for the letting of premises (by the lessor/landlord), whether oral or otherwise, and whether the terms of the lease grant the right of exclusive occupation to the tenant or include the use of the premises in common with the landlord or any other person or with the landlord and any other person.

A lease is actually a type of conveyance which contains certain covenants on part of the lessor and the lessee. According to Cheshire and burn, a covenant is prima facie a contract binding only on the lessor & the lessee- the actual contracting parties.

Professor Kotey in his article RIGHTS AND OBLIGATIONS OF RESIDENTIAL LANDLORDS AND TENANTS noted that a covenant is either express or implied. An express covenant is one which is spelt out in the lease.  An implied covenant, on the other hand, is one which is implied by virtue of the creation of the residential tenancy, by statute, or by virtue of what the courts consider to be the intention of the parties.

Ghana’s CONVEYANCING ACT, 1973 (N.R.C.D. 175) states the covenants which are implied by the law in all conveyances in Ghana.

By section 22 (1) of the Conveyancing Decree a covenant for quiet and peaceable enjoyment is implied in all residential tenancies. The position, as noted by Professor Kotey, is the same in English law, where the landlord and tenant relationship automatically implies a covenant by the landlord for quiet enjoyment. Under the Decree, the personal liability of the landlord cannot be removed.

The covenant gives the tenant the right to be put into possession of the premises.  The covenant also gives the tenant the right to live in the premises without interference or disturbance from the landlord or any person claiming through him.

An example of a breach of the covenant for quiet enjoyment occurs when the landlord enters the premises prior to the expiration of the tenancy, and forcibly removes the tenant.  But the covenant also protects the tenant from acts which cause interference with his enjoyment of the property. Thus, where the landlord in order to get rid of a tenant caused damage to the property, this was held to be in breach of the covenant for quiet enjoyment.

In Karam v. Ashkar, the landlord demolished part of the premises so as to make it unsafe for the tenant’s portion of the premises to remain in use.  It was held that this was a breach of the covenant for quiet enjoyment. Another authority for this proposition is the case of Lavender v. Betts already mentioned above where the plaintiff also sued for trespass and breach of the covenant for quiet enjoyment and succeeded.

Under section 27 of the Rent Act, 1963, (Act 220) it is also a criminal offence to do any act whatsoever, or refrain from performing any of the obligations undertaken under a lease or tenancy agreement, if this is done with intent to compel the tenant to give up possession.

Thus from above it can said that your landlord by attempting to evict you forcibly by removing the roof of the house which you occupied breached the covenant for quiet and peaceable enjoyment implied in your lease with him. This means you would be able to claim compensation from him on this basis as well. Moreover, your landlord could also be held to be criminally liable under Act 220 for trying to compel you to give up possession of the house by ripping off its roof.

Instead of resorting to such violent and clearly illegal methods your landlord should have sought an order against you for the recovery of the possession of, or for the ejectment from, the premises from the Rent Magistrate, or any other judge of a court of competent jurisdiction.

You must also note that under section 23 of the CONVEYANCING ACT, 1973 (N.R.C.D. 175) there is an implied covenant by the transferee in relation to the payment of rent. Since you have delayed in paying rent you could also be sued by your landlord on the grounds of breach of this implied covenant.

 

We have dealt with the rights you have in order to be able to claim compensation for the acts committed by your landlord. However, we still have to determine whether or not the landlord can evict you legally under the circumstances you have described.

According to the authors CHESHIRE & BURN, a lease or tenancy may be terminated by forfeiture, surrender, merger, effluxion of time, frustration, repudiation or where an agreement to that effect has been made by notice to quit given by either party. At common law, termination of the lease in any of these ways entitles the landlord to recover possession of the leased property.

From your description of your situation, your landlord might only be able to terminate your lease under the common law through forfeiture or a notice to quit.

To be able to succeed under any of those termination of lease options, your landlord would however have to fulfill certain conditions under the law.

It has already been stated that you have breach an implied covenant relating to the payment of rent. However, the breach of a covenant by a tenant does not entitle the lessor to resume possession by a re-entry (or forfeiture) upon the premises, unless the right to do so is expressly reserved in the lease. In Sackey v. Ashong, the tenant covenanted to repair the premises. The covenant was not fortified by a forfeiture clause. In an action by the landlord to recover possession because of the tenant’s alleged breach of the covenant to repair, it was held by the West African Court of Appeal that, in the absence of express provision, breach of a covenant of repair does not give the landlord a right of re-entry.

You have not given the details of your lease with your landlord thus it is impossible for me to tell whether or not he has the right to forfeiture under common law. This however does not negate the possibility that he could have reserved that right under your lease.

Under Ghanaian law there is also provision made for the termination of a lease by forfeiture under section 29 of the CONVEYANCING ACT, 1973 (N.R.C.D. 175) where certain things are required of the lessor in order to make a forfeiture valid.

In the case of WESTERN HARDWOOD ENTERPRISE LTD v WEST AFRICAN ENTERPRISES LTD it was held that Section 29 of the Conveyancing Decree, 1973 (NRCD 175) required that the lessee should be served with a notice of the breach complained of, and had to have knowledge of the fact that such notice had been served before a right of re-entry was to be enforced. Furthermore, the right of entry should be enforced by action or otherwise.

Even if your landlord would have the option of forfeiture available to him under the law based on your lease, a relief could be available to you under section 30(1) of NRCD 175. Under section 30 of the Decree, a lessee may apply for relief where the lessor is exercising his right of re-entry. An application for relief may be granted or refused taking into account all the circumstances of the case. The granting of relief against re-entry may be on terms stipulated by the court.

 

Now let’s consider the termination of a lease by a notice to quit. A notice to quit is necessary in the case of yearly and other periodic tenancies and also in the case of a lease for a fixed period if a stipulation to that effect is made. A periodic tenancy, in contrast with a fixed-term tenancy, does not expire with the effluxion of time. It continues indefinitely, from period to period, until determined by the service of an appropriate notice to quit by one of the parties.

The notice must conform strictly to the terms of the contract. The onus of proving its validity lies upon the person by whom it is given.  There are 3 matters in particular upon which a notice to quit validity depends may be observed: it must indicate correct day; it must be unconditional and it must relate to the whole of the premises.

A lease for a fixed term may be determined by notice where this is expressly provided for. Where there is no express stipulation to that effect a tenancy for a fixed term cannot be terminated by notice.

In the case of Savage v. G.I.H.O.C., premises were let by the landlord for a term of fifteen years with an option to the tenants to determine the tenancy on the expiration of the first eight years after giving six months’ notice of their intention to do so. After less than a year the tenants vacated the premises. In an action by the landlord for arrears of rent and for general damages, it was held that the tenancy had not been terminated because the notice to terminate the tenancy was not in accordance with the provision of the lease.

Since I do not know the terms of your lease and whether it is a periodic or a fixed term lease I cannot identify whether or not your land lord would be able to utilize a notice to quit under the common law in order to eject you. However, we must not disregard the possibility of this option being available to him.

Despite the common law right to terminate the tenancy by the landlord, in Ghana, in respect of premises regulated by the Rent Act, 1963 (Act 220), as noted by KOTEY E. in his article TERMINATION OF LEASES, termination of the lease under the common law does not automatically entitle the landlord to recover possession. In order to recover possession of such premises a landlord must, in addition to terminating or being entitled to terminate the lease at common law, satisfy one of the conditions specified in section 17 (1) of the Rent Act.

Section 1 of Act 220 states that the Act applies to all premises (subject to certain exceptions none of which apply to you) and section 36 defines “premises” to include a building, structure, stall or any other structure or part of that structure movable or otherwise, which is the subject of a separate letting, other than a dwelling house or part of a dwelling house bona fide let at a rent which includes a payment for board or attendance, and land, outbuildings and appurtenances let together with the premises at a single rent when adjoining the premises let. Based on this, the Act would apply to the house you occupy.

Section 17(1) of Act 220 states that an order against a tenant for the recovery of the possession of, or for the ejectment from, any premises shall not be made or given by the Rent Magistrate, or any other judge of a court of competent jurisdiction in accordance with any other enactment except, inter alia, where a rent lawfully due from the tenant has not been paid or tendered within one month after the date on which it became lawfully due.

From the provision above, since you have delayed on rent, your landlord could apply to the necessary authority to get an order of ejectment against you as long as under the terms of your lease he also has the common law right to terminate the lease. Thus we can say that whether or not your landlord can legally eject you from the premises at this point in time depends largely on the provisions of your lease.

In summary, you have the options of suing your landlord in Trespass to land and on the basis of a breach of the implied covenant for quiet and peaceable enjoyment under section 22 (1) of the Conveyancing Decree. Your landlord could also be held guilty of a crime under section 27 of the Rent Act, 1963, (Act 220) for trying to compel you to give up possession of the house by ripping off its roof.

Despite this, you as a tenant, might also sued by your landlord on the grounds of breach of the implied covenant to pay rent under section 23(1) of the Conveyancing Decree. Moreover, if your lease allows it, you landlord might be able to legally recover possession of the house you occupy if he satisfies the requirements under the common law rules either under termination of the lease by forfeiture or notice to quit.

I know that you must be going through a difficult time right now but I hope everything I have discussed has helped you understand the options available to you as well as encourage you to take steps in order to be compensated by your landlord. I would advise you not to worry too much because there is nothing legal that your landlord can do at this point except turn to the courts. Although the courts might be forced to admit that your landlord has the right to eject you by law if your lease allows it, they also have the power to exercise discretion by taking into consideration all the surrounding circumstances of your situation and ruling accordingly. I hope you find a new place as soon as possible with a more understanding landlord. Best of Luck!