The tenant is now the new lord of the land!
The current Covid cases statistics in Mauritius stands at 501, with 443 recovered cases. One may say, reflectively, that the Mauritian economy has been resilient enough to avoid being hit harder by this pandemic. It brought along many changes, one of which is some new provisions which have been causing people, and landlords in particular, quite a headache. New legislative provisions often reveal many things but hide others as well.
Let me reproduce the new legislative provision verbatim for fear of misrepresenting the legislator’s intent by attempting to paraphrase. The Covid-19 (Miscellaneous Provisions) Act 2020 (henceforth, the “Act”) – published in the Government Gazette of Mauritius on 16 May 2020 – amended a number of enactments to cater for the impact of COVID-19, and for matters connected, consequential or related thereto. One of these amendments was the new provision below:
“(a) Notwithstanding this Act, any other enactment or any other agreement, and subject to paragraph (b), non-payment of rent in respect of premises for the months of March 2020, April 2020,May 2020, June 2020, July 2020, August 2020 and such other subsequent month as may be prescribed shall not constitute a breach of a tenancy agreement, provided that the rent for the months of March 2020, April 2020,May 2020, June 2020, July 2020, August 2020 and such other subsequent month as may be prescribed is fully paid, in instalments, by 31 December 2021 or such other date as may be prescribed.
(b) Paragraph (a) shall apply to all premises, whether business or residential premises, let under this Act or under any other enactment”
At first glance, from a landlord’s viewpoint, this might be disorienting, to say the least. On a personal front, when this provision caught the public eye, my email hummed awake, producing an inbox stuffed with semi-hysterical subject lines on my clients’ – and mostly landlords – queries. One might compare this to a phone which just caught a Wi-Fi connection, producing all the notifications pending for some few hours. And to them, the coming weeks loomed ahead like gigantic question marks. It made me realise how things are seldom simply what they appear to be. Simple legislative provision, but with grave consequences.
Let us exhume the practical difficulties with this provision which are being faced at the moment by landlords.
First, although the Landlord and Tenant Act applies only in certain categories of premises, the moratorium provided for under this Act, seems to have been extended to apply to ALL premises, whether commercial or residential, let under the Landlord and Tenant Act or under any other enactment (which would, inter alia, cover those premises rented under the Mauritian Civil Code). Consequently, where rent has not been paid for the months of March 2020 until August 2020, this shall not constitute a breach of the tenancy agreement. As such, any landlord seeking the eviction of the tenant will not be able to rely on the non-payment of rent for the aforementioned months in order to do so.
Secondly, the tenant has until 31 December 2021 in order to effect payment of the rent outstanding for the months of March 2020 until August 2020.
Thirdly, the new provision does not only concern lease agreements governed by the Landlord and Tenant Act, but those leases governed by the Mauritian Civil Code as well. Therefore, no Court may not make an Eviction Order, whether against tenants under the Landlord and Tenant Act or tenants covered under any other enactment, for failure to pay rent for the months of March 2020 to August 2020, on the condition that the outstanding rent payments for March 2020 until August 2020 are paid by 31 December 2021.
Therefore, whatever may have been the legislator’s intent, the actual effect of this provision is to give the discretion to tenants firstly, not to pay rent for the months of March 2020 until August 2020, and secondly, to be able to pay their outstanding rent as far as 31 December of next year. Until we have new amending provision, the landlords will have to take it on the chin.
 https://www.worldometers.info/coronavirus/country/mauritius/ [accessed on 01 December 2020]
Author: Rubesh Doomun, On Demand Lawyer at Centurion Plus.
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