OTIENO: What tenants should know about legal rent recovery

Distress for rent applies strictly to unpaid rent. It does not automatically extend to other costs such as electricity or water bills /FILE 

A visit from an auctioneer is one of the most distressing experiences a tenant can face. Whether at home or at a business premises, it often brings anxiety, confusion and at times embarrassment, especially when linked to unpaid rent.

Yet, despite the tension surrounding such moments, the process is governed by clear legal rules designed to protect both tenants and landlords. Understanding these rules can help tenants respond appropriately and avoid unnecessary losses.

Auctioneers do not act on impulse. In most cases, they are instructed by a landlord to recover unpaid rent through a legal process known as distress for rent. This allows a landlord to recover arrears by identifying and, if necessary, selling a tenant’s movable property. However, this power is not unlimited.

Distress for rent applies strictly to unpaid rent. It does not automatically extend to other costs such as electricity or water bills unless these are explicitly included in the tenancy agreement as part of the rent. Tenants should therefore be alert to what exactly is being claimed before taking any action.

Equally important is verifying the auctioneer’s legitimacy. Only licensed auctioneers are permitted to carry out this process. Upon arrival, the auctioneers must identify themselves and explain the purpose of their visit.

They should present valid documentation, including their official licence and national identification. This is a critical safeguard against fraud and intimidation by unqualified individuals posing as auctioneers.

The auctioneer must also have formal written instructions from the landlord, a lawyer, or an authorised property manager. Without such authority, the process is invalid. Once these requirements are met, the auctioneer is expected to issue a proclamation notice.

This notice is central to the process. It lists the items identified for possible seizure and assigns them an estimated value. It also provides a timeline, typically 14 days within which the tenant can respond. During this period, the listed goods remain in the tenant’s possession but are considered legally protected. They must not be sold, moved, or tampered with.

At this stage, tenants should take time to review the claims being made. It is essential to confirm whether the rent arrears are accurate. Good record-keeping becomes invaluable here. Receipts, bank statements, or any proof of payment can help clarify discrepancies and, in some cases, stop the process altogether.

Once the details are confirmed, tenants have several options. The most direct approach is to settle the outstanding rent along with any additional costs incurred during the process. Alternatively, tenants can engage the landlord or their agent to negotiate a payment plan. Importantly, the process can still be halted before any sale takes place, provided payment is made or an agreement is reached within the notice period.

However, there are clear limits on how tenants should respond. Confrontation is strongly discouraged. Obstructing or resisting an auctioneer can lead to legal consequences, including arrest. Even when a tenant believes the process is flawed, the appropriate course of action is to seek legal redress rather than escalate the situation.

Another common mistake is attempting to hide or remove items listed in the proclamation notice. Once goods have been identified, they are legally protected. Interfering with them can attract additional penalties and weaken the tenant’s position in any dispute.

It is also important to understand that not all property is subject to seizure. The law protects essential household items and tools of trade necessary for basic living or earning a livelihood. These may include clothing, bedding and certain work equipment. If such items are wrongly listed, tenants have the right to challenge their inclusion.

Tenants should also distinguish between distress for rent and eviction. The two are not the same. The presence of an auctioneer does not mean a tenant is being removed from the premises. Eviction follows a separate legal process with its own requirements, including proper notice and adherence to constitutional protections.

Auctioneers themselves are bound by strict rules. They are required to conduct their duties peacefully and within the law. They cannot force entry into premises if access is denied, and their activities must generally take place during the day. Any actions carried out at night or through intimidation may be deemed unlawful and could invalidate the process.

Additionally, auctioneers must follow all procedural requirements, including issuing proper notices and respecting protected items. Failure to comply can expose both the auctioneer and the landlord to legal consequences.

For tenants, the most important lesson is the value of early action. Ignoring notices or delaying a response often makes the situation worse. Open communication with the landlord or property manager can sometimes prevent escalation to the point of distress.

Keeping clear and organised records of all payments is equally essential. In any dispute, documentation provides the strongest evidence. Understanding the terms of the tenancy agreement can also help tenants avoid misunderstandings and stay informed about their obligations.

Where uncertainty exists, seeking legal advice early can make a significant difference. Professional guidance can clarify rights, identify any procedural errors and help tenants make informed decisions.

Ultimately, a visit from an auctioneer is a serious legal step, but it is not without remedies. The law seeks to balance the landlord’s right to recover rent with the tenant’s right to fair and humane treatment.

The most effective response is not panic or resistance, but awareness and timely action. By understanding the process and acting within the law, tenants can protect their interests and navigate the situation with confidence.

The writer is a licensed Class B auctioneer, a certified professional mediator and a member of the Institute of Chartered Mediators and Conciliators