Not long ago, the much awaited and anticipated 46th law week celebration at the UG School of Law came to an end. I must say, it was glamorous, all fun and worth the wait and anticipation. As part of the law week celebration, the fourth day, that is, Friday 8th March was set for Legal Outreach. Legal outreach is simply the day law students go to the field to engage people in the markets and streets and provide them with, as it were, free legal education so they may also have the opportunity of understanding the basic tenets and operation of the law in the Ghanaian society. As a committee head, I need not reiterate how instrumental I was on that Friday. Madina market was our destination this year and we were asked a lot of intriguing legal questions by the madina market women. My observation was that most of the questions asked centered on Land Law and the Rent Act to be precise. This article therefore attempts an articulation of the law on landlord and tenant in Ghana, particularly when a landlord can lawfully eject a tenant from his house. As a corollary, I will also demonstrate how the Rent Act, 1963 (Act 220) makes it virtually practically impossible for a landlord to eject a tenant from his house.
The main legislations governing the law of landlord and tenant in Ghana are the Rent Act, 1963 (Act 220) hereafter referred to as Act 220 and the Conveyancing Act, 1973 (Act 175) hereafter also referred to as Act 175. This is because leases are hybrid transactions in that, they are partly estates and partly contractual.The Conveyancing Act is the legislation that governs the general transfer of an interest in land, howsoever described. Section 45 which is the interpretation section of the Act defines conveyance as includes any document in writing by which an interest in land is transferred, an oral grant under customary law duly recorded, a lease, disclaimer or release. In the same section 45 a lease is also defined to include a sublease or other tenancy. The Rent Act is the substantive legislation that governs rent specifically. The preamble to the Act states that an act to consolidate and amend the law relating to the control of rents and the recovery of the possession of premises in certain cases, to amend certain provisions of existing enactments and to provide for matters connected therewith or incidental thereto. So it is safe to say that rent is subsumable under lease and the Rent Act subsumable under the Conveyancing Act so the conveyancing act applies mutatis mutandis.
There are several ways through which a lease may be terminated under our laws. Among them are by expiration or effluxion of time, by surrender, by frustration, by notice being duly served by the landlord on the tenant to quit or by forfeiture. So the general rule is that a landlord who wants to repossess his property must fit under any of the modes of terminating a lease before he can do so lawfully. Experience has shown that among all the modes of terminating a lease or rent agreement, forfeiture has always been a very difficult means to navigate and succeed. This is because for instance by expiration the lease will come to an end according to its own terms, or a lease agreement may provide for notice and where duly served, the lease would come to an end or the tenant can surrender or give up the unexpired portion of the leasehold to the landlord. The problem has always been when the landlord is coming under forfeiture. The conditions under which a tenant may forfeit his or her rent are provided in section 17 of Act 220.
Under sec 17(1), the preamble says that, “…no order against a tenant for the recovery of the possession of, or for the ejectment from, any premises shall be made or given by the appropriate Rent Magistrate, except in any of the following circumstances”. The conditions will be discussed seriatim. Firstly, where any rent lawfully due from the tenant has not been paid or tendered within one month after the date on which it became lawfully due. This at a glance may appear simple but the truth is that in Ghana, tenants usually make provision for their rent even before the date is due unless in special cases where times are really hard for the tenant. Even that, some negotiations may take place. Obviously, a tenant who sits down over a month and does nothing about his expired rent is not ready to keep up the place. The next is where any obligation of the tenancy has been broken or not performed. The obligations referred here may be express or implied covenants and includes nuisance and annoyance, injury to walls, duty not to make any substantial alterations and additions without the consent of the landlord among others. In one case, the court held that pounding fufu on the second floor of the building amounted to nuisance on the part of the tenant.
The next where the tenant or any person residing with him has been guilty of conduct which is a nuisance or an annoyance to adjoining premises. The distinction between this condition and the one discussed above is that, in the immediately discussed one, the nuisance is being made to other tenants in the premises or the landlord himself whilst in the current condition, the nuisance is being committed to tenants in adjoining premises. The next item is where the tenant or any person residing with him has been convicted of using the premises or allowing the premises to be used for an immoral or illegal purpose. The emphasis here is on the word, ‘convicted’. Conviction can and should only be made by a court of competent jurisdiction. Without a valid conviction by the court, a landlord cannot fix himself under this condition. The next item is where the condition of the premises has in the opinion of such Magistrate or judge deteriorated owing to acts of waste by or the neglect or default of the tenant or any person residing with him. Waste refers to acts or conduct of the tenant that degrade the value or character of the property either intentionally or negligently. Example is washing and cooking in the living room and causing spirogyra to grow in the living room. Of course this will appear to be so unreasonable and such a person does not deserve to keep residing in the property.
The next item is where the tenant has given notice of his intention to quit in writing and in consequence of such notice the landlord has contracted to sell or let the premises or has taken any other steps as a result of which he would, in the opinion of the judge, be seriously prejudiced if he could not obtain possession. As the saying goes, the law will not allow a person to approbate and reprobate. It is against equity and good conscience to approve and later disapprove of something thereby causing hardship to the other party who relied on such an approval and so under such circumstance, a judge may grant an order for ejection of the tenant.
The next point is where the premises are reasonably required by the landlord for personal occupation as a dwelling house by himself, a member of his family or any person in his whole time employment, such premises being constructed to be used as a dwelling house, so, however, that the circumstance that the premises are reasonably required by the landlord for personal occupation by someone in his employ shall not be a sufficient circumstance if the Magistrate or Judge is not satisfied that such landlord usually provides premises for occupation by an employee of the class to which that employee belongs, and no such order shall be made if the Magistrate or Judge is satisfied having regard to all the circumstances of the case, including any alternative accommodation available for the person for whose occupation the premises are so required or for the tenant, that greater hardship would be caused by granting the order than by refusing it. In simple terms, there are some requirements that the landlord must meet if he requires the premises for personal occupation by himself or a relative. They are that, the premises must have been constructed for dwelling purposes and he reasonably needs it. Reasonable here will be a question of fact and will be determined by judge. Where he needs it for his employee, the nature of employment must be such that he provides residence for employees in such position. And above all, the judge must make a determination whether greater hardship will not be caused to the tenant before granting it.
Lastly, where the lease has expired and the premises are reasonably required by the landlord to be used by him for his own business purposes, such premises being constructed to be used as such, if the landlord has given not less than six months written notice to the tenant of his intention to apply for an order for the recovery of the possession of, or the ejectment from, the premises. Here also, the requirements are very cumbersome I must say. The conditions that must be satisfied are that firstly, the premises should have been constructed for business purposes. This means that if it a residential premises that the landlord wants to convert to business premises after ejecting the tenant, he will not be able to come under this subsection. In addition to this, the lease or rent of the tenant should have expired, the landlord must have given the tenant at least six months written notice and his reason for requiring the premises must also be reasonable enough. Whether or not his reason is reasonable enough will be determined by the judge.
To make matters worse, the process does not end where the landlord has been able to fit himself under any of the conditions in section 17 as discussed above. This is where the Conveyancing Act comes in. It provides the method of applying to court for an order of forfeiture of a lease by the lessor(landlord). Sec 29 of Act 175 provides that a right of re-entry or forfeiture under a provision in a lease for a breach of a covenant, condition or an agreement in the lease is not enforceable, by action or otherwise, until (a) the lessor serves on the lessee a notice, specifying the particular breach complained of, requiring the lessee to remedy the breach, if the breach is capable of remedy, requiring the lessee to make reasonable compensation in money for the breach, except where the breach consists of a non-payment of rent, (b) the lessee has knowledge of the fact that the notice has been served, and (c) the lessee fails, within a reasonable time after the service of the notice under paragraph (a), to remedy the breach, if it is capable of remedy, and except where the breach consists of a non-payment of rent, to make reasonable compensation in money, to the satisfaction of the lessor, for the breach. Clearly, what section 29 is saying is that unless the tenant is a man of straw or is no longer interested in keeping the premises, there is no way the landlord can eject him or recover his premises against the will of the tenant. And even when there is an express provision in the lease agreement giving the landlord a right of forfeiture or re-entry without going through this herculean task, subsection 3 makes it null and void.
In sum, I have sought to articulate the procedure through which a landlord may eject a tenant lawfully. As I said in my introduction, I also sought to demonstrate how the Rent Act makes it virtually impossible for a landlord to eject a tenant in principle. I add ‘in principle’ because I acknowledge the difficulties in practically enforcing the provisions in the Rent Act. Notable among the difficulties is the lack of Rent Control Offices and officers in the various districts across the countrywith the exception of few. Notwithstanding the stringent provisions in the Rent Act, tenants are generally speaking always left to the mercy of the Ghanaian landlords because of our inability to enforce the law. On the part of the landlord, the probable explanation that can be offered for the seemingly harshness of the provisions in the Rent Act is that the Act is an obsolete piece of legislation which was passed during the Nkrumah regime. President Nkrumah with his socialist ideology had always sought to protect the lower class or ordinary citizen as against the well to do or elite few during his time. It is my hope that a new legislation, which is more congruous, will be passed sooner than later to reflect the interest of both the landlord and the tenant.