Last week a frustrated client contacted me for advise on how to deal with nuisance by his neighbors in a gated residential estate during this season of unprecedented curfew and lockdown. This week a different client; who is a Real Estate Developer that owns a gated residential estate in the leafy suburbs within Nairobi city also contacted me for similar advice.
It dawned on me that the curfew, semi- lockdown, working from home and quarantine has put to test the terms and conditions of Sub-Leases and Tenancy agreements. So what is nuisance from a legal perspective? Nuisance is an act which can cause annoyance, incon- venience, harmful or offensive to the public or a member of it and for which there is a legal remedy.
Most residents in Nairobi and its environs either live in gated residen- tial estates or apartments where property ownership is either by way of a Sub-Lease or a Sectional Property Title Deed. In a typical residential estate, the residents are either house owners or tenants who have signed tenancy agreements between them and the house owners.
A Sub-Lease in layman’s terms is a title deed to the property or apart- ment; a standard sub-lease contains the dos and don’ts that the owners of the property and their tenants ought to adhere to. Ideally, the Sub-Leases for most gated residential estates have four parties: the Lessor, the house owner and the management company whose shareholders are the owners of the individual apartments and tenants.
The House owners who opt to let out their houses, are obliged to sign tenancy agreements with their tenants and ensure that the conditions of the tenancy agreements mirror the terms of the Sub-Leases.
The Management Company has the role of managing the common areas and ensuring that the provisions of the Sub-Leases are adhered to the latter. Unfortunately, in most cases the management companies are either mismanaged its directors or due to ignorance of the owners who are not aware of what is the role of such companies in a residen- tial setting.
For purposes of this article we will dwell on the obligation of a management company to provide law and order within a gated residential estate.
It is a standard provision in well drafted Sub-Leases that the manage- ment company as the Lessor is obligated to provide security subject to payment of service charge and ensure that every house or apart- ment owner adheres to the terms of the Sub—Lease and other by-laws, rules and regulations promulgated to ensure that their activi- ties don’t affect the quiet enjoyment of the property by other users (neighbors).
However, this can only be achieved with the cooperation of the residents or property owners in a gated community. On the other hand, the Owners as the Lessee among many other terms and condi- tions of the Sub-Lease are expected to:
Adhere to the user of the Property – in residential areas this is to use the Property for the purposes of a private residence only and for no other purpose whatsoever;
Avoid causing nuisance – not to do on the Property or bring or allow to remain upon the Property anything that may be or become or cause a nuisance annoyance disturbance or inconvenience injury or damage to the Lessor or the owners or occupiers of the other properties;
Some Sub- Leases specifically prohibit certain activities, for example, a clause may provide:
“The Lessee is not allowed to play or use or permit the playing or
use of any musical instrument television radio loudspeaker or mechanical or other instrument so as to cause a nuisance or annoyance to any of the occupants of the other parts of the Buildings.”
We advise that when acquiring a house or an apartment by way of a Sub-Lease, the intended owners should engage an advocate who will take them through the terms of the Sub-Lease and their intended consequences.
Likewise, we advise that a prospecting tenant should similarly engage an advocate to explain the terms of a tenancy agreement before agreeing to a tenancy.
Unfortunately, most owners and tenants do not read through the terms of the Sub-leases and tenancy agreements respectively, hence it is very common find commercial offices within a residential estate contrary to the user of the premises.
More common now during the current curfew and semi- lockdown are house parties and gatherings that cause nuisance to the other residents.
The big question is what happens when the owner/tenant of the house or Apartment breaches some of these terms and conditions?
The reality is that there are a myriad of challenges that present them- selves when enforcing terms and conditions of the Sub- Lease. At times it is easy to enforce payment of service charge by simply denying the Lessee in default some of the common services like collection of garbage or disconnecting the flow of water if the source of the water is a borehole.
In extreme scenarios where the Lessee is a habitual defaulter of service charge, properly drafted Sub-Lease agreements give powers to the management company to enforce the payment of service charge the same way you would claim a debt. The management company might go further to procure the services of auctioneers to settle service.
Legally where there is a breach, the first option is to inform the management company, which should take immediate action by officially informing the owner of the apartment to rectify the breach. In case the apartment or house is let out to a Tenant, it is the obliga- tion of the Landlord to ensure that their Tenant adheres to the terms set out in the Sub-Lease.
However, in most cases it is difficult to enforce certain breaches especially where you have a dysfunctional management company and uncooperative residents. In a scenario where there is nuisance result- ing from a house party or abuse of narcotics, the nuisance can be reported to the management company or the security agents guarding the estate to contain the nuisance.
However, in case the security agent cannot contain the nuisance; the affected resident or the security agents can also contact the police because it is a criminal offence under the Kenyan Penal Code to cause public disturbance. Landlords should also be wary of the criminal liability imposed on them under the Anti-Narcotics Act which places liability on them for allowing the use of narcotics and illegal substance within their premises.
In my opinion it is the responsibility of the Management Company, house owners/landlords and tenants to ensure that nuisance is cabbed during this Covid-19 season in order to support all people staying and working from their homes.
In circumstances where nuisance cannot be contained I would recommend that the arm of the Law takes its course to protect the vulnerable within the residential estates.