Hassan Al-Sitri
The government called on the House of Representatives to reconsider a draft law aimed at confronting the phenomenon of renting properties designated for family residential purposes other than this category, indicating that the proposed draft law does not fulfill an actual legislative necessity, and conflicts with established principles in the existing real estate rental law. It is also devoid of the legal and constitutional controls necessary to impose an administrative penalty and creates legal effects that may affect the guaranteed rights of individuals. Under the Constitution.
The proposed draft law – in addition to its preamble – consists of two articles, the first of which added a new paragraph No. (F) to Article (6) of Law No. (27) of 2014 issuing the Real Estate Rental Law Real Estate Rental Law, which states: “In the event of a violation of the use of the rented property for the purpose of family housing for purposes other than this purpose, an administrative fine shall be imposed on the lessor if it is proven that he was aware of the violation, and in the event that his knowledge was not there. This fine is imposed on the violating tenant who is proven to have committed this violation.
The amount of the fine, its application controls, and collection procedures shall be determined by a decision from the municipality or the competent secretariat after the approval of the Minister concerned with municipal affairs, provided that the amount of the fine shall not exceed the total annual contract fee. The employees of the municipality or the competent secretariat who are designated by a decision of the Minister in agreement with the Minister concerned with municipal affairs shall have the status of judicial police officers in order to verify the implementation of the provisions of this paragraph and the decisions implementing it, and to control and prove all violations that occur in accordance with its provisions.
The law aims to confront the phenomenon of renting properties designated for family residential purposes other than this category, despite the competent authorities issuing administrative decisions to prevent the registration of these contracts in accordance with the provisions of the law, by imposing a financial fine in the event of a violation of the use of the property rented for the purpose of family housing for purposes other than this purpose.
While she expressed her appreciation for the objectives pursued by the proposed draft law, she made the following observations regarding it: First observation: The proposed draft law lacks legislative necessity. One of the established principles in legislation is that the issuance of laws must be based on a real need and a clear necessity that cannot be addressed except by law. However, the legislator, in accordance with Article Six of the Real Estate Lease Law, has established in each municipality one or more offices called “The Real Estate Lease Registration Office is responsible for registering real estate lease contracts subject to the provisions of this law, for the purpose of protecting the rights of the contracting parties, the landlord and the tenant,” ensuring the implementation of the obligations stipulated in the contract, and reducing the negative effects that arise from changing the purpose of using the leased property, especially changing the purpose of using the leased property from family housing to group housing.
Paragraphs (c), (d), and (e) of this article stipulate that it is not permissible to register lease contracts that do not include the purpose for which the leased property is used, and it is not permissible to register lease contracts whose subject matter is residential real estate for the purpose of other than family housing, except with the approval of the municipality or the competent secretariat, and in accordance with the controls determined by its decision after the approval of the minister concerned with municipal affairs.
In implementation of this, decisions were issued controlling the registration of group housing rental contracts located in the governorates of the Kingdom, including, for example, Resolution No. (1) of 2023 regarding the controls for registering group housing rental contracts located in the Capital Governorate, which required the registration of group housing rental contracts, and entrusted the Capital Secretariat (the municipality in similar decisions) to verify that the controls stipulated in this decision are not violated in a way that threatens the safety and health of the housing occupants. And their lives. Articles (6) and (7) of this decision regulate the measures that may be taken when a violation is proven, or if it is proven that a building is being used as group housing with an unregistered rental contract. The registration of the group housing rental contract may be canceled, or the conditions may be corrected within an appropriate period determined by the municipality. The Electricity and Water Authority may also be asked to cut off electricity and water services to the building.
Therefore, the decisions issued regarding the controls for registering collective housing rental contracts located in the governorates of the Kingdom came to achieve the purpose of the process of registering rental contracts, especially group housing rental contracts. The registration controls were specified and the Capital Secretariat and other municipalities were entrusted with the task of verifying that the controls were not violated. It may conduct an investigation into the reports or serious complaints it receives, to verify the commission of any violation of the provisions of this decision, and specified the measures. Which may be taken when a violation is proven or when unregistered group housing is taken up as stated in the texts of these decisions.
Thus, the legislative treatment through these decisions came with a flexible administrative organization without the need for new legislative intervention, and the draft law proposed in this way represents an unjustified legislative duplication, and does not meet the condition of legislative necessity, which is one of the fundamental foundations upon which the enactment or amendment of laws is based, especially since there is no actual deficiency or regulatory vacuum that calls for this intervention, and in the absence of necessity. Legislative Issuance of the proposed draft law becomes inconsistent with the established principles that require resorting to legislation to be the last means after exhausting all available regulatory and administrative alternatives. If it becomes clear that these alternatives are sufficient to achieve the desired goals, then relying on them would be better and more effective than resorting to a legislative amendment, especially since imposing an administrative fine as proposed requires careful control and specification of the provisions. In violations and penalties, which is not available in the proposed draft law.
Second observation: The proposed draft law conflicts with established principles in the real estate rental law. The real estate rental law includes an integrated system to regulate the relationship between the landlord and the tenant, and one of its most important features is that the law applies to all civil lease contracts for real estate rented for housing or for others. The law obliges, in Articles (4) Paragraph (C) and (24) thereof, to specify the purpose for which the leased property is used in the contract, and to use the property. The lessor in accordance with what was agreed upon, or according to the purpose for which it was intended, and the penalty for violating this obligation was arranged by making it one of the reasons in which the lessor may request the eviction of the leased property in accordance with Article (38), clauses (4) and (9) of this law. Also, any dispute arising from the application of the provisions of this law falls under the jurisdiction of the High Civil Court, in accordance with Article (5) thereof, meaning that the authority to impose the penalty rests with the judiciary. For management.
The proposed draft law departs from this established legal framework, as any dispute arising from the application of the provisions of the relevant real estate rental law shall be considered by the Grand Civil Court, which has the jurisdiction to decide on it. Among the issues within its jurisdiction are the dispute regarding determining the purpose for which the leased property is used, and the violation of the use of the leased property for the purpose of family housing for other purposes, as this is considered one of the disputes arising from the application of the provisions of this law, and therefore the imposition of an administrative fine. If it is proven that they have committed this violation, the landlord or lessee must be subject to an additional financial penalty that must be decided judicially, and the person responsible for imposing this penalty must be the judicial authority and not through an executive administrative authority.
Also, the penalty contained in the proposed draft law, an administrative fine that may reach the total annual contract fee, is not only considered a regulatory fine, but rather a serious financial penalty that takes the nature of a penalty and must be subject to precise controls because its nature is close to a penalty, especially if it has a serious impact. Therefore, imposing a penalty of a penal nature through administrative decisions without referring to the judiciary, after violating the principle that the penalty may not be imposed except by a judicial ruling in accordance with Article (20) of the Constitution of the Kingdom of Bahrain, and assigning the authority to impose this penalty and determining its amount and controls for its application by a decision of the municipality or the competent secretariat, contradicts the civil nature of the lease contract, in addition to the lack of availability of judicial appeal against the decision issued for an administrative fine, which violates the principle of the right to litigation. All of this makes there a conflict between the proposed draft law and the principles established in the current real estate rental law and is not consistent with the goals it achieves. The legislator through this law.
Third observation: The proposed draft law lacks objective controls for applying administrative penalties. Administrative penalties, including administrative fines, are subject to precise legal and constitutional controls aimed at protecting rights and freedoms, and ensuring justice and transparency in administrative work. Therefore, when it is proposed to impose an administrative fine, these controls must be adhered to, including the principle of legitimacy of crimes and administrative penalties, the principle of proportionality between the penalty and the violation, and the availability of guarantees of procedural justice. The proposed draft law is devoid of substantive controls for imposing the proposed administrative fine.
The proposed draft law is plagued by ambiguity in explaining the violation and the absence of a precise legislative definition of it. It is established, in accordance with general constitutional principles, that there is neither a crime nor a penalty except by a specific and clear legal text. In this regard, we find that the proposed draft law came in a broad and uncontrolled form when defining the violation. The violation that entails the administrative penalty (administrative fine) was not specified precisely and clearly. It merely stipulated, “In the event of a violation of the use of the rented property for a purpose other than family housing…” without a precise explanation of what these prohibited purposes are. Or the criteria by which family residential use can be distinguished from others, which opens the door to varying and uncontrolled assessment by the administrative authority upon application, and makes the violation subject to the penalty not precisely defined. This ambiguity conflicts with the principle of legal legitimacy, which requires that violations and penalties be determined with certainty that does not tolerate interpretation or expansion, which violates the principle of legality and leads to insecurity. Legal.
The proposed draft law also violates the principle of proportionality between the penalty and the violation, as it stipulates that the administrative fine can reach “the amount of the fine not to exceed the total annual contract fee,” which is a serious penalty from a financial standpoint. He did not establish any objective criteria to indicate when the fine is imposed at the full maximum limit, reduced, or doubled upon repetition, which makes the penalty disproportionate in many cases to the violation, especially since the violation may be simple, temporary, or corrected later. Also, leaving the determination of the amount of the administrative fine and the controls for its application to the administrative authority, without the law obligating it to any objective or relative criteria for assessment, represents an uncontrolled legislative delegation that violates the principle of gradation of legal rules, as the law itself must draw the general framework of the penalty, and indicate the minimum and maximum and the criteria for gradation between them. The draft law proposed with this description does not have the necessary controls and standards to estimate the amount of the administrative fine.
The proposed draft law is devoid of guarantees of procedural justice, as it does not include any guarantees related to the procedures for imposing an administrative fine, such as conducting an investigation, notifying the violator, giving him an opportunity to respond or correct before imposing the penalty, or enabling him to file a grievance and appeal, which conflicts with the constitutional guarantees established regarding disciplinary and administrative penalties, and the right of every person to defend himself before a neutral party. This is a fundamental violation of the right to a fair trial and defense guarantees, which makes the imposed administrative penalty fundamentally flawed and voidable.
The proposed draft law is characterized by ambiguity in determining responsibility between the landlord and the lessee, as it links the imposition of a fine on the lessor “when his knowledge of the violation is proven,” and on the lessee “if the lessor has no knowledge of the violation,” without clarifying the standards of proof or the procedures for verifying knowledge or ignorance, and distributing responsibility in this way without clear criteria for proving knowledge of the violation violates the principle of legal certainty and creates a conflict in Responsibility. Although the proposed draft law distinguished in principle between the landlord and the tenant according to knowledge of the violation, it did not set an objective standard for proving the landlord’s knowledge, nor did it specify the authority competent to adjudicate this dispute, nor the burden of proof or its means, which opens a wide door to personal discretion and legal dispute between the two parties, and may lead to one of them being charged with a penalty that he does not deserve. Accordingly, the proposed draft law violates the principle of personal responsibility for the violation, and establishes uncontrolled liability in the absence of rules of evidence and discrimination, which makes the text lose its fairness and legislative integrity.
The proposed draft law includes a new provision that grants employees of the municipality and the competent secretariat the status of judicial police officers. The real estate rental law is devoid of any text that determines the criminal act. The violation included is the use of the property rented for the purpose of family housing for purposes other than this purpose. This is a violation of a contractual obligation and does not constitute a criminal offense until the necessity of stipulating the status of judicial police officers is achieved to seize it as a criminal offence. On the other hand, when necessary, judicial control can be granted by individual decisions in accordance with the text of Article (45), third paragraph of the Code of Criminal Procedure, without the need to add a new general text in the proposed draft law, which avoids duplication and legislative overlap.
Accordingly, the proposed draft law in its current form does not meet the substantive controls for administrative punishment. It is marred by deficiencies in the pillars of legality, proportionality, specificity, and procedural justice.
