The Rent Act’s ejectment policy
By: Prince Kojo Tabiri Esq
Introduction
Renting a property in Ghana is a common practice for both locals and foreigners who seek temporary or long-term residence. Rent, a condition for tenancy, is paid to the landlord as a result of the landlord/tenant relationship. This is the case whether the lease is for a residential space in a city or a rural property. Understanding rent and tenancy laws in Ghana is essential for both landlords and tenants, as it helps minimizes, disputes and litigation in the courts.
In this article, the statutory and common law rules on the recovery of premises in Ghana is explored. The article will also explain how a landlord can recover possession of a rented property, in accordance with the legal/statutory requirements of the country. By the end of the article, readers will have a better understanding of their legal rights and obligationsin the Ghanaian rental market.
What is a valid tenancy under Ghanaian Law?
Tenancy is a legal agreement between a landlord and a tenant where the landlord allows the tenant to occupy their property in exchange for rent. The principal rule is that for a lease or tenancy to be valid/enforceable, it must be in writing and signed by the landlord or by his agent.
There are, however, some exceptions to the above rule. These exceptions are Leases by operation of law; Leases by operation of the rules of equity; and Leases where the lessee is in possession for a term not exceeding three (3) years.[1]
Rights and Liabilities of Tenants and Landlords
Tenants in Ghana have several obligations and rights. The primary obligation of the tenant is to pay rent. Additionally, tenants are required to use a rented property for the purpose for which it was let and not to sublet same without the landlord’s consent. The law also requires that a tenant gives a landlord reasonable access to the property for inspections and repairs. Failure to meet these obligations could result in eviction. In a well-drafted lease, there is always an express covenant requiring the tenant to pay rent. In Ghana, however, the majority of tenancy agreements are made verbally and informally, and they often just stipulate the rent and the method of payment. The obligation to pay rent is now implied in residential tenancies for valuable consideration[2]. Under the Rent Act, 1963 (Act 220), tenants have several rights, including the right to peaceful occupation of the premises, the right to adjustment of rent only in accordance with the law, the right of notice any intended eviction or termination of tenancy, and the right to redress before a court of law.
For Landlords in Ghana, their rights and obligations include providing safe and habitable housing, maintaining the property in good condition, access to their property for maintenance or inspection, to evict tenants who violate the terms of their lease, and the right to terminate a lease at the end of its term.
Equally, landlords must respect the rights of tenants, including but not limited to the right to privacy and quiet enjoyment of the property.
Both tenants and landlords should also adhere to the terms of the tenancy agreement, including the payment of rent, and should resolve any disputes through peaceful and legal means.
The Rent Act on the Recovery of Premises by a Landlord
The Rent Act 1963 (Act 220) (hereinafter referred to as “the Act”) provides the conditions under which a landlord may recover possession from a tenant or that may lead to the ejection of a tenant from the premises.
Premises is defined by the Act under Section 36 . as any building, structure, stall or other erection or part thereof, moveable or otherwise, which is the subject of a separate letting, other than a dwelling house or part thereof bona-fide let at a rent which includes a payment for board or attendance”
According to the law, no order against a tenant for the recovery of possession of the premises or ejectment shall be made by a competent court unless at least one of the conditions below is satisfied. These grounds include non-payment of rent, subletting without the landlord’s consent, using the property for illegal or immoral purposes, causing damage to the property among others.
The Recovery of Possession of a Landlord’s property for personal use
A landlord may also apply for an order to recover possession of their property if they require the property for their own occupation or for the occupation of their spouse, children, or parents.[3] The onus of proving that the premises is reasonably required for the personal occupation is on the Landlord. This law was upheld in Adu and Others v. Clegg [1981] GLR 173.
A landlord must further satisfy the following conditions outlined in the case of Boateng v. Dwinfuor [1979] GLR 360 for the recovery of premises for personal use:
- The landlord must be able to demonstrate a bona fide need for the property for their own occupation or that of their spouse, children, or parents.
- The landlord must have served a notice to quit on the tenant in accordance with the provisions of the Rent Act.
- The landlord must have given the tenant an opportunity to contest the claim for possession.
- The tenant must have no valid defense to the claim for possession.
If these conditions are met, the court may grant the landlord an order to recover possession of the property. It is important to note that the Rent Act provides several protections for tenants, and the court will only grant such an order if the landlord can show that the conditions have been met and that the tenant has no valid defense to the claim for possession.
The court must be however be satisfied that, having regard to the circumstances, greater hardship would not be caused by granting the order.
Therefore, in assessing the circumstances of greater hardship, the court shall consider the alternative accommodation available for the person whose occupation the premises are required or for the tenant (Apoloo CJ in Oman Ghana Trust Holdings Ltd v. Acquah (1984-86) 1 GLR 198))
Who qualifies as a family member per the Landlord’s recovery of premises for personal use?
The word “family” must not be understood here in the Ghanaian sense of extended relations. A “member of family” is defined under Section 36 of the Act as meaning the father or mother, a wife, husband, child, brother or sister of the landlord. Other relations are however excluded.
In Nimako v. Archibold [1966] GLR 612 it was emphatically stated that neither statutory law nor customary law places any limitation on the class or age of the landlord’s family. Children who are of age or are married are still classified as children.
What is the Notice Period Required for ejectment by the Landlord under Section 17?
It was held in Adu and Others v. Clergg (supra) that under section 17(1)(g), six months’ written notice was not required. However, where the lease agreement is terminable by notice, the notice to terminate must be in accordance with the provision of the lease.
Contrastingly, If the lease has expired and the landlord intends to use the premises for their own business purposes, and the premises were originally constructed to be used for such purposes, the landlord must give the tenant not less than six months’ written notice of their intention to apply for an order for the recovery of possession or ejectment from the premises[4].
It is important to note that the landlord must have a genuine intention to use the premises for their own business purposes and must not use this as a ploy to evict the tenant. The court will take into consideration the circumstances of the case, including the nature of the landlord’s business, the suitability of the premises for such business, and the reasonableness of the notice given to the tenant, when considering whether to grant an order for ejectment.
Other grounds for which the Court will grant an order of ejectment?
Where a landlord intends to pull down the premises and construct a new one, or to re-model the premises, an order of ejectment against a tenant may be granted by the court. That is, if the landlord intends to demolish or remodel the rental property, and such construction or remodeling cannot be carried out while the tenant is occupying the property, the court may grant an order for the ejectment of the tenant to enable the landlord to carry out the necessary works. This provision allows the landlord to recover possession of the property to carry out significant works, which cannot be done while the tenant is still in occupation.[5]
Secondly, where the tenant was living in the rental property as part of their employment with the landlord, and their employment has now ceased, the court may grant an order for possession or ejectment at the instance of the landlord. This provision allows the landlord to recover possession of the rental property that was provided as part of the tenant’s employment package, now that their employment has ended[6].
Lastly, if the landlord was previously living in the property themselves, but let the property while they were away from Ghana or the local area, and now wishes to re-occupy the property, they must have let the property furnished during their absence. If these conditions are met, the court may grant an order for the ejectment of the tenant to enable the landlord to re-occupy the property if the property was let substantially furnished[7].
The law, it must be stated, abrogates the tenant’s obligation to pay rent in cases where the landlord breaches his fundamental duty to ensure his tenant’s quiet enjoyment by entering the property and evicting the tenant before the tenancy expires.
A landlord must satisfy one of the conditions specified in section 17(1) of the Rent Act, 1963. Tenants whose tenancy have determined, but who cannot be ejected because the landlord has not satisfied section 17(1) may continue in possession as statutory tenants. The tenant may, of course, decide to quit on the determination of his tenancy; but if he decides not to, he cannot be lawfully evicted unless the landlord satisfies section 17(1).
Procedure for Recovery of Premises
The general overview of the procedure for the recovery of premises in Ghana (after any of the provisions under Section 17(1) has been triggered) is espoused as follows:
- The landlord must first give the tenant a notice of intention to recover possession of the premises. The notice must be in writing and must state the grounds for the recovery of possession.
- If the tenant does not comply with the notice of intention, the landlord may then apply to the Rent Control Court or the High Court (depending on the jurisdiction) for an order for the recovery of possession. The application must be made on a prescribed Form, supported by an affidavit.
- The tenant must be served with a copy of the application and the supporting affidavit, along with a notice of the date and time of the hearing.
- The court will then hear both the landlord and the tenant and any witnesses they may call. The court may also order a visit to the premises to assess the condition.
- If the court is satisfied that the grounds for the recovery of possession have been met, it may make an order for the recovery of possession of the premises. The order must be served on the tenant, and the landlord may then take possession of the premises.
It is important to note that the procedure for the recovery of premises may vary depending on the specific circumstances of the case. It is therefore advisable to seek legal advice before taking any action to recover possession of premises.
- Conclusion
The purpose of the Act’s statutory provisions is to provide a framework for resolving disputes between landlords and tenants in a fair and just manner. It ensures that both landlords and tenants are aware of their respective rights and responsibilities and that they follow the proper legal procedures in any dispute resolution process. The provisions of the Rent Act provide a clear and objective basis for resolving disputes between landlords and tenants, which helps to prevent arbitrary evictions and protect tenants from abuse by unscrupulous landlords. By setting out these grounds for recovery of premises and the legal procedures for eviction, the law helps to promote fairness, stability, and security in the rental market in Ghana.
THE WRITER IS A BARRISTER AND SOLICITOR OF THE SUPREME COURT OF GHANA AND A MEMBER OF ZOE, AKYEA & CO LAW FIRM.
HIS LEGAL INTERESTS INCLUDE BUT ARE NOT LIMITED TO REAL/PROPERTY LAW, COMPANY AND COMMERCIAL PRACTICE, CONSTRUCTION LAW, INTERNATIONAL TRADE & INVESTMENT LAW, AND DISPUTE RESOLUTION.
[1] Section 36 of the Land Act, 2020 (ACT 1036)
[2] Section 50 of the Land Act, 2020 (ACT 1036)
[3] Section 17(1)(g) of the Rent Act 1963 (Act 220)
[4] Section 17(1)(h) of ACT 220
[5] Section 17(1)(i) of Act 220
[6] Section 17(1)(j) of ACT 220
[7] Section 17(1)(k) of ACT 220
