An owner of land is generally free to deal with his land as he chooses, subject, of course, to any restrictive covenants or lawful limitations. For example, where the owner/landlord leases the land to a tenant, he has, by contract, restricted his own ability to use the land for the duration of the lease. In exchange for rent, he has given the tenant exclusive possession and the right to use and enjoy the rented property without undue interference or disturbance from the landlord. But what happens when the tenant stops paying rent?
In 1944, the Jamaican parliament passed the Rent Restriction Act (‘RRA’) with two primary objectives:
- To restrict the rent a landlord could properly charge, and
- To protect tenants occupying premises owned by landlords.
The RRA applies to most residential and commercial properties in Jamaica, and it restrains a landlord’s ability to evict a tenant who has stopped paying rent or otherwise breached the lease. Landlords may not forcibly remove tenants from the leased premises without a court order or do any act calculated to interfere with the tenant’s quiet enjoyment of the property. Any landlord convicted of doing such an act faces up to a year in prison.
So what can a landlord do to recover possession?
The first step is generally to issue a notice to quit. A valid notice must tell the tenant why he is being asked to leave. The reason must also correspond with one of the grounds in section 25 of the RRA. Therefore, the reason may be non-payment of rent, breach of a provision of the lease, conduct which is a nuisance or annoyance, the property is reasonably required by the landlord, among others.
If the notice expires and the tenant still has not left, the landlord will need to commence court proceedings to obtain an order for recovery of possession. To get the order, the landlord not only has to fit into one of the grounds under section 25, but also convince the court that it is reasonable to make the order. In some circumstances, the landlord may even have to show that less hardship would be caused by granting the order than refusing it. These statutory obstacles are additional to the practical challenges of getting an initial court date, and a subsequent trial date, within a reasonable time.
So, for example, let’s look at a standard case where a landlord is seeking to recover possession for non-payment of rent. The landlord sees the date he was expecting payment come and go. The rent must be owing for thirty days before he can issue a notice to quit. That notice to quit will then typically give the tenant 30 days to leave but the applicable notice period may vary depending on the circumstances. The landlord has now been deprived of rent for 60 days or more. If the tenant pays rent before the notice expires, then the notice ceases to be valid and all is forgiven (by the statute). If he does not pay rent, then the landlord must commence court proceedings and it could take a long time to get the order, provided the landlord can convince the judge that it is reasonable to make it.
Against this background, it is easy to see why many consider the law in Jamaica to be pro-tenant. This does not mean that landlords should refuse to rent their properties to anyone. The needs for housing, commercial property, and money make landlord-tenant relationships indispensable. The current state of the law, however, does underscore the benefits to be acquired from seeking legal assistance to navigate the landlord-tenant relationship.
Before entering a lease, landlords may want to consider applying for an exemption certificate to exempt their property from the RRA. Landlords should also insist on a written lease which includes an express covenant for the tenant to leave once the lease is up, and which provides for a returnable security deposit to offset any expenses arising from and attributable to the tenant. To minimize the risk of litigation with a non-compliant tenant, landlords may also want to vet tenants before signing the lease by requesting references for the tenant and conducting credit checks.
If litigation does become necessary, deciding which court to commence proceedings in will also require careful consideration, taking into account, among other things, the time it will take to get an order and the amount of rent likely to be owed and/or recoverable when the claim is heard. While proceeding in the Parish Court is generally believed to be speedier, the Supreme Court proceedings may be expedited if there are no substantial disputes of fact. The Supreme Court, unlike the Parish Court, also has the power to award more than $1 million dollars, should the rent owing exceed that threshold.
Once the landlord obtains a court order for recovery of possession, it will be enforced by a bailiff. The bailiff carrying out the court orders and process is not the agent of the landlord. The landlord will therefore not be responsible for actions taken by the bailiff to remove the tenant.
Legal assistance may just make the difference between feeling like a landlord and feeling like a landservant.
Jacob Phillips is an Associate at Myers, Fletcher & Gordon, and is a member of the firm’s Litigation Department. Jacob may be contacted via Jacob.Phillips@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
