The state must protect tenants during emergencies

The news of possible evictions and an increase in house rents particularly with no sign of easing lockdown is a grave concern. The slogan of stay home, stay safe would be defeated unless the government issues immediate suspension of any form of eviction including the issuance of eviction notices, threats of imposing late payment penalties, or increasing rents.  The government themselves went as far as suspending even some of the parliamentary laws like Tobacco and Pay Revision in the name of the pandemic. His Majesty’s waiver of loan interest did not seem to have any positive impacts on tenants.

Many countries already issued a “temporary ban including criminal penalties on residential evictions” to combat the pandemic’s economic effects and anticipating that many tenants” will not be able to pay their rent due to a loss of income.  Our government thus far has remained reluctant to take any actions against landlords either for political reasons or otherwise. The recent news in Kuensel is the testimony of hardships faced by tenants and the government’s inactions.

If this continues, tenants may have to resort to invoking Section 87 of the Contract Act of Bhutan, 2013 which allows frustration of contract.  The frustration principle “excuses performance of obligations when an unexpected supervening event occurs” such as the current pandemic. Frustration can be exercised through Force Majeure, impossibility, and impracticability.

Under force majeure, the parties in the contract are neither liable nor responsible nor deemed to have defaulted or breached the agreement “when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s control, including, acts of God, flood, fire, earthquake, war, terrorist threats or government order, law, or actions, pandemic, etc.

Similarly, where it becomes impossible to pay the rents due to such as state-imposed lockdown or restrictions where businesses cannot open or people are prohibited from working, failure to pay rents can be excused at least till such tenants can resume to generate income.

Impracticability excuses performance where a party can demonstrate that a supervening event has caused performance to be so difficult and expensive that it becomes impracticable. In our case, as long as tenants can demonstrate that due to this pandemic, it becomes impracticable for them to generate income to pay rents, they are excused from paying rent. Therefore, under these three situations, landlords cannot force tenants to pay rent, impose late payment penalties, increase the rent, or evict the tenants. The tenancy agreement stays in abeyance under such circumstances.

If landlords evict tenants by force or enter without permission of the tenants pressurizing tenants, the tenant may report the matter to the police, possibly charge their landlords for harassment, assault, trespass, and other relevant provisions under the Penal Code of Bhutan.

The government must understand that fighting against this pandemic does not mean mere lockdowns or threats of incarcerations or testing or imposition of numerous restrictions depriving people’s livelihood. Since the fundamental right to livelihood has been deprived by the state, the state has the responsibility to protect these groups of people. With no indication of easing lockdown any time soon, before some sections of the society are forced out of their homes, the least the government can do is to immediately issue orders suspending any form of evictions until the current situation normalizes.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.

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