KUWAIT CITY, Sept 28:
A legal expert says electoral cases should be brought under the purview of regular courts and not the Constitutional Court as is the case now. Speaking to the Arab Times on Sunday, Labeed Abdal added that in many countries including France, Belgium, Egypt etc the Constitutional Court is tasked with rescinding unconstitutional laws. “It is not practical to refer a case such as vote recount to the Constitutional Court since there is tangible evidence available and as such the regular courts can handle the matter with facility.” “Under the regular court system, a candidate will get an opportunity to appeal his case unlike the present system wherein there is no provision in the law for an appeal. As a Constitutional expert, I had suggested in the past that in order to make the vote count process more efficient and transparent, the whole process needs to be overhauled.”
Replying to a question on to the establishment of the Election Commission recommended by some parliamentarians, he stressed that he does not sense the need for an Election Commission and that he has full faith in the judicial system of the country. Under the current system, he said, the Constitution does not have any provision for the Election Commission and there is a need for issuing a new law in order to adopt the system. Abdal went on to explain that present system also is as good as an election commission wherein the process involves judges and officials from the ministry of interior. Abdal observed that the Constitutional Court will accept petitions for vote recount only after thoroughly reviewing them.
Citing an example, Abdal added that a total of 33 candidates had filed a petition before the Constitutional Court seeking a recount and that only 2 cases were approved by the court. Both the candidates who sought a recount were declared winners by around 500-600 votes each. Abdal represented the Parliament Speaker Jassem Al-Khorafi in the Constitutional Court. Abdal added that the authorities should also speed up the vote recount process, thereby issuing the verdict in the shortest time possible. “This will enable to avoid a lot of confusion as under the present system it takes about 3 to 4 months to reach a logical conclusion for a case. I think this can be brought down to 2 to 3 weeks.” Replying to a question whether the judges who were involved in the counting of votes at election booths can be sued by the two parliamentarians, he replied in the negative and was quick to add: “they are humans after all.”
By Francis A. Clifford Cardozo
Arab Times Staff
http://www.arabtimesonline.com/kuwaitnews/pagesdetails.asp?nid=22784&ccid=9
Monday, September 29, 2008
Back multi-faith culture
By Labeed Abdal
Lawyer
Arab Times News paper
KUWAIT was accused of setting obstacles in the path of those who practice religions other than Islam in recent media reports, including the annual US State Department report on religious freedom.The Kuwaiti Constitution includes international regulations aimed at protecting religious freedom, particularly Article 35 which states that “freedom of belief is absolute. The State protects freedom of religious practice in accordance with established customs provided it does not conflict with public policy or morals.” According to the explanatory notes of the Constitution, freedom of belief is absolute as long as it is done personally — between the person and his God. If the practice becomes public, it should be regulated by the authorities.
A mechanism to develop the multi-faith culture in the local community is required to ensure that people respect one’s freedom to practice his religion. Government, non-government, profit and non-profit organizations should all work together to promote interfaith tolerance, encourage a genuine dialogue between Muslims and non-Muslims, eradicate misconceptions about Islam among those with other faiths, and support all efforts to guarantee peaceful coexistence of people with various religions.The establishment of a trusted authority is also essential as a decision-making body on how the local authorities regulate the practice of different religions to avoid contradictions in ‘fatwas’ issued through the Sharia Law, clarify misunderstandings, and rectify mistakes in the enforcement of the law.
labeed@lalaw.com,kw
http://labeedabdal.com
http://www.arabtimesonline.com/kuwaitnews/faqdetails.asp?faid=1135&faqid=14
Lawyer
Arab Times News paper
KUWAIT was accused of setting obstacles in the path of those who practice religions other than Islam in recent media reports, including the annual US State Department report on religious freedom.The Kuwaiti Constitution includes international regulations aimed at protecting religious freedom, particularly Article 35 which states that “freedom of belief is absolute. The State protects freedom of religious practice in accordance with established customs provided it does not conflict with public policy or morals.” According to the explanatory notes of the Constitution, freedom of belief is absolute as long as it is done personally — between the person and his God. If the practice becomes public, it should be regulated by the authorities.
A mechanism to develop the multi-faith culture in the local community is required to ensure that people respect one’s freedom to practice his religion. Government, non-government, profit and non-profit organizations should all work together to promote interfaith tolerance, encourage a genuine dialogue between Muslims and non-Muslims, eradicate misconceptions about Islam among those with other faiths, and support all efforts to guarantee peaceful coexistence of people with various religions.The establishment of a trusted authority is also essential as a decision-making body on how the local authorities regulate the practice of different religions to avoid contradictions in ‘fatwas’ issued through the Sharia Law, clarify misunderstandings, and rectify mistakes in the enforcement of the law.
labeed@lalaw.com,kw
http://labeedabdal.com
http://www.arabtimesonline.com/kuwaitnews/faqdetails.asp?faid=1135&faqid=14
Thursday, September 18, 2008
Court boots 2 MPs, seats runners-up; Call to review voting procedures
KUWAIT CITY, Sept 17: The Constitutional Court Wednesday annulled the membership of two MPs who were elected to the Parliament in May 2008 because of discrepancies in vote count and replaced them with the runners-up who had challenged the results. The court ruled in favor of challenges by Askar Owayed Al-Enezi and Saadoun Hammad Al-Otaibi against Mubarak Mohammed Al-Walaan and Abdullah Medhi Al-Ajmi. After the verdict was issued, MP Otaibi told the Arab Times he had put all his trust in the Kuwaiti judiciary. He also said he was sure of winning the seat. “Since the beginning of the case, I was sure I polled 10,914 votes and held the eighth position in the Fifth Constituency,” said Otaibi. He added he had submitted to the court all the documents to prove he was the winner.
MP Askar Al-Enezi told the Arab Times he is grateful to God and for the Kuwaiti judiciary for this great victory. He added he fought for four months until he won back his rights. He was standing from the 4th Constituency. “We are all here at the request of this nation, whether at the National Assembly, the Municipal Council or any place in the State of Kuwait,” said Al-Enezi. Constitutional expert attorney Dr Mohammed Al-Muqate, who represented Al-Enezi in court, told the Arab Times this verdict is final. He added his client became Member of Parliament the moment the verdict was issued.“The National Assembly must soon hold an immediate special session to notify the MPs about the court’s verdict,” said Muqate, and added, “The two ‘new’ MPs must join the parliament and two ‘former’ MPs must vacate their places.”
The decision of the Constitutional Court with regards to the disqualification to the two MPs is final and cannot be contested, says another Constitutional expert.
Speaking to the Arab Times, Labeed Abdal said that the two disqualified MPs will be asked to step down with immediate effect and that the Speaker of the Parliament will hold a special session to conduct a swearing in ceremony for the two newly-declared winners. “This not something unprecedented in the history of Kuwait and we have had many such cases wherein lost candidates have been declared winners following a recount ordered by the Constitutional Court.” “The two winners cannot assume their roles unless they are sworn in and this expected to happen soon.”He said that if any candidate wishes to contest the elections results, then he has to do within a certain time-frame and that normally it takes about 3-4 months for the Constitutional Court to issue a verdict in cases involving recount.
Refuting speculation that the verdict will have a negative impact on the electoral process as a whole, Al-Otaibi pointed out “contrary to these allegations, I believe the ruling has rectified an actual error.” He also underscored the need to amend the Elections Law, regulate electoral procedures, and appoint an independent judge who will stay in the committee for 24 hours to oversee the counting process. He said female representatives should work only until 8:00 pm and they will be replaced by men to continue the counting of votes.
Al-Otaibi affirmed he will take his oath as MP on Oct 21, unless an emergency session is held for this purpose prior to the opening of the next legislative round. On the other hand, MP Mohammed Hayef Al-Mutairi emphasized the need for accuracy in the electoral process to avoid the recurrence of mistakes that can be exploited in the future. “If this is a human error, the authorities should verify it to identify the causes, since it involves a very sensitive issue that led to the disqualification of MPs Mubarak Mohammed Al-Waalan and Abdullah Medhi Al-Ajmi, who were replaced by Al-Otaibi and Askar Owayed Al-Enezi. This is the first time in the history of the National Assembly, which might prompt the public to doubt the judicial system,” Al-Mutairi argued. He also underlined the importance of carefully analyzing the issue and identify reasons behind the error to bring the public’s trust back to Kuwait’s judicial system.
Meanwhile, Secretary General of the National Assembly Allam Al-Kandari commended the decision of the Constitutional Court, indicating this is normal and similar to what happened in the previous elections under the 25 constituency system between former MP Khalid Al-Adwa and Al-Otaibi, but this time the period was longer and the issue has affected both parties. Expressing his willingness to support calls for the amendment of vote counting procedures, Al-Kandari admitted there were flaws found in the existing vote count mechanism, hence, the need for a new system to protect the rights of all candidates. He clarified Al-Enezi and Al-Otaibi are not official members of the Parliament until they take their oath on Oct 21 or earlier if an agreement is reached to hold an emergency session for this purpose. In the meantime, Al-Enezi applauded the Constitutional Court for ruling in his favor and declaring him a winner in the Fourth Constituency, replacing Al-Walaan. He also reiterated his trust in the integrity and transparency of Kuwaiti courts.
Moreover, Speaker of the Parliament Jassem AL-Khorafi welcomed Al-Enezi and Al-Otaibi to the National Assembly and expressed his appreciation for the court’s efforts to reach a final decision on the issue. Representing the Fourth Constituency, Al-Enezi vowed to do his best to live up to the expectations and wishes of his voters. He reiterated that he would work hard to implement his platform and election promises regarding bedoun (stateless people), housing, unemployment, Kuwaiti women’s rights and education. The new member of parliament stressed the importance of cooperation between both legislative and executive authorities for the sake of the nation and citizens.
By Francis A. Clifford Cardozo, Dahlia Kholaif, Abubakar A. Ibrahim and Moamen Al-Masri
http://www.arabtimesonline.com/client/pagesdetails.asp?nid=22393&ccid=9
MP Askar Al-Enezi told the Arab Times he is grateful to God and for the Kuwaiti judiciary for this great victory. He added he fought for four months until he won back his rights. He was standing from the 4th Constituency. “We are all here at the request of this nation, whether at the National Assembly, the Municipal Council or any place in the State of Kuwait,” said Al-Enezi. Constitutional expert attorney Dr Mohammed Al-Muqate, who represented Al-Enezi in court, told the Arab Times this verdict is final. He added his client became Member of Parliament the moment the verdict was issued.“The National Assembly must soon hold an immediate special session to notify the MPs about the court’s verdict,” said Muqate, and added, “The two ‘new’ MPs must join the parliament and two ‘former’ MPs must vacate their places.”
The decision of the Constitutional Court with regards to the disqualification to the two MPs is final and cannot be contested, says another Constitutional expert.
Speaking to the Arab Times, Labeed Abdal said that the two disqualified MPs will be asked to step down with immediate effect and that the Speaker of the Parliament will hold a special session to conduct a swearing in ceremony for the two newly-declared winners. “This not something unprecedented in the history of Kuwait and we have had many such cases wherein lost candidates have been declared winners following a recount ordered by the Constitutional Court.” “The two winners cannot assume their roles unless they are sworn in and this expected to happen soon.”He said that if any candidate wishes to contest the elections results, then he has to do within a certain time-frame and that normally it takes about 3-4 months for the Constitutional Court to issue a verdict in cases involving recount.
Refuting speculation that the verdict will have a negative impact on the electoral process as a whole, Al-Otaibi pointed out “contrary to these allegations, I believe the ruling has rectified an actual error.” He also underscored the need to amend the Elections Law, regulate electoral procedures, and appoint an independent judge who will stay in the committee for 24 hours to oversee the counting process. He said female representatives should work only until 8:00 pm and they will be replaced by men to continue the counting of votes.
Al-Otaibi affirmed he will take his oath as MP on Oct 21, unless an emergency session is held for this purpose prior to the opening of the next legislative round. On the other hand, MP Mohammed Hayef Al-Mutairi emphasized the need for accuracy in the electoral process to avoid the recurrence of mistakes that can be exploited in the future. “If this is a human error, the authorities should verify it to identify the causes, since it involves a very sensitive issue that led to the disqualification of MPs Mubarak Mohammed Al-Waalan and Abdullah Medhi Al-Ajmi, who were replaced by Al-Otaibi and Askar Owayed Al-Enezi. This is the first time in the history of the National Assembly, which might prompt the public to doubt the judicial system,” Al-Mutairi argued. He also underlined the importance of carefully analyzing the issue and identify reasons behind the error to bring the public’s trust back to Kuwait’s judicial system.
Meanwhile, Secretary General of the National Assembly Allam Al-Kandari commended the decision of the Constitutional Court, indicating this is normal and similar to what happened in the previous elections under the 25 constituency system between former MP Khalid Al-Adwa and Al-Otaibi, but this time the period was longer and the issue has affected both parties. Expressing his willingness to support calls for the amendment of vote counting procedures, Al-Kandari admitted there were flaws found in the existing vote count mechanism, hence, the need for a new system to protect the rights of all candidates. He clarified Al-Enezi and Al-Otaibi are not official members of the Parliament until they take their oath on Oct 21 or earlier if an agreement is reached to hold an emergency session for this purpose. In the meantime, Al-Enezi applauded the Constitutional Court for ruling in his favor and declaring him a winner in the Fourth Constituency, replacing Al-Walaan. He also reiterated his trust in the integrity and transparency of Kuwaiti courts.
Moreover, Speaker of the Parliament Jassem AL-Khorafi welcomed Al-Enezi and Al-Otaibi to the National Assembly and expressed his appreciation for the court’s efforts to reach a final decision on the issue. Representing the Fourth Constituency, Al-Enezi vowed to do his best to live up to the expectations and wishes of his voters. He reiterated that he would work hard to implement his platform and election promises regarding bedoun (stateless people), housing, unemployment, Kuwaiti women’s rights and education. The new member of parliament stressed the importance of cooperation between both legislative and executive authorities for the sake of the nation and citizens.
By Francis A. Clifford Cardozo, Dahlia Kholaif, Abubakar A. Ibrahim and Moamen Al-Masri
http://www.arabtimesonline.com/client/pagesdetails.asp?nid=22393&ccid=9
Tuesday, September 16, 2008
‘No subletting without permission of owner’; Tenant, landlord’s rights detailed
‘No subletting without permission of owner’; Tenant, landlord’s rights detailed
KUWAIT CITY, Sept 15: In case of a dispute between the landlord and the tenant over rent, certain factors are taken into consideration by the court to ascertain whether the rent warrants a hike or not. These factors include: the prevalent rent of similar properties, size, quality, architectural finish etc, says a Kuwaiti lawyer, Labeed Abdal. After the tenancy contract is concluded, the landlord must hand over the property in good condition, and if the tenant discovers any defects that are unacceptable to him, then he can have the contract cancelled and claim compensation.
In an exclusive interview with the Arab Times on Sunday, Abdal talked about various aspects of the Tenancy Law.
Q: What matters does the Kuwait Tenancy Law regulate? A: This law covers the rental of residential flats, houses, buildings, land for storage use, offices, warehouses etc.
Q: What are the obligations of the landlord?A: The tenancy contract obligates the owner of the property to entrust his property, subject to the tenancy contract which must specify the rented property, including the rent for a specified or unspecified period of time without any obstructions.
Q: What standards are applied to estimate the rent increase, especially if a dispute arises between the landlord and the tenant?A: In event of a dispute between the landlord and the tenant regarding rent, certain factors are taken into consideration by the court to decide whether the rent should be increased or not. These factors include: the prevalent rent of similar properties, size, quality, architectural finish etc.
Q: What procedures are followed with regards to the rent contract?A: All tenancy contracts must be written; old unwritten contracts are governed by rules and regulations prevalent at the time of the verbal contract. This can be proven by witnesses or receipts in event of a disagreement over the rent.
Q: What would be the solution if there is a dispute between many tenants for one premise?In such a situation, the court accords priority to the first tenant provided he has a proven contract date preceding all others. The rest can seek compensation in the court if they have valid grounds.
Q: What happens if a tenant receives defective rented property?A: After the tenancy contract is concluded, the owner must hand over the property in good condition, and if the tenant discovers any defects that are unacceptable to him, then he can have the contract cancelled and claim compensation.
Q: How does the Tenancy Law regulate the issue of maintenance?A: A landlord must do maintenance to the rented property at appropriate times (during holidays, vacations etc). If he does not undertake this responsibility, then the tenant has the right to seek court permission to do so, and incur the reasonable costs on the owner. Suppose if the owner affirms that maintenance costs are inflated, then the judge has the right to adjust the figure in such a way as not to overcharge the owner while the rest is borne by the tenant. If the tenant does not accept to pay, then he can ask the judge to cancel the contract. Also the judge will take into account the rent amount and duration of stay in the premise regarding compensation.
Q: How does the law regulate the necessary repairs? And what if the tenant suffers any damages in the process?A: A tenant cannot refuse the owner to carry out any repairs or maintenance, or renovation, but the tenant can claim compensation or demand reduction of rent if he suffers any damages while the repairs are being done. The tenant can also have the contract terminated. Nonetheless the tenant and the owner can add fresh terms in the contract.
Q: What is the tenant’s obligation regarding the rent and how is it governed by the law?A: The rent must be paid at the beginning of every month, or as agreed. In case of any disagreement with owner for whatever reason, the rent must be deposited in the Execution Department of the Justice Palace or Courts within 20 days from the date of rent payment. This should be done after the tenant officially offers the rent to owner and he refuses to accept the same. The Execution Department then informs the owner regarding the deposit within 5 days. But if the owner accepts the money deposited in Execution Department for 2 consecutive times, then the tenant can deposit further rents in the Execution Department. Also the tenant can pay the rent directly to the owner any time, if the owner agrees to receive the same and gives him the receipt.
Q: Is it possible to withdraw the rental money from the Execution Department?A: A tenant cannot withdraw the money once he deposits it with the Execution Department unless he gets a court ruling to this effect, or permission from the landlord.
Q: When is it possible to amend the rent in the contract?A: It is legally possible to amend the amount of rent after 5 years, or lapse of contract period if the contract is valid for more than 5 years, bearing in mind the rent value of similar property. It should be noted that the rental hike should not exceed 100 per cent.
Q: What are the limits set for any structural changes in the property if the tenant wishes to do it?A: The tenant should not effect any structural changes to the property, and if he does, then the owner has the right to ask the tenant to restore it to its original condition.
Q: What are the obligations of the tenant in the rent contract?The tenant must take good care of the property he uses; he should maintain it properly (sanitary fittings, paints, doors, electrical fittings, etc) unless the agreement between owner and tenant dictates otherwise, or the owner willingly does that.
Q: What are the other obligations?A: The tenant is responsible for any abuse of the property; any damage suffered to the property while he/she is occupying it is their sole responsibility. The tenant should not sublet the property or part of it, unless permitted by the owner.
Q: How does the Tenancy Law regulate subletting?Subletting can only be done with the approval of the landlord. If the tenant has taken permission to sublet the property or part of it, and after some time leaves the property, then the rent relation between owner and tenant will be transferred to the one who rented the entire property from the tenant.
Q: What if the subletting is done without permission of the owner?A: In case of subletting parts of the property, the owner has the right to ask the tenant, who sublet parts of the property without the consent of owner to vacate the property and this can be done by a court order, thereby allowing the landlord to claim damages if there were any.
Q: What happens if the landlord sells the property?A: In case the owner sells his property to another party, and if the tenant knows of the sale, then he should pay the rent to the new owner, and the tenancy contract with the previous owner will be considered effective till a new one is drawn by the new owner without affecting the period of time needed to amend the rent (5 years).
Naturally the new owner should inform the tenant about the change of ownership; if he fails to do so, and the tenant pays the rent to the previous owner, then the new owner must claim his money from the previous owner. But if he proves beyond doubt that the tenant knew about the sale of the property and yet paid the previous owner, then he can claim the rent from the tenant regardless of what the tenant paid to the previous owner. Also if the new owner is not known to the tenant, then the latter can deposit the rent in the Execution Department.
Q: What action can a new landlord take if he discovers that the rent contracts are fraudulent?A: If the new owner discovers that the tenancy contract between the old owner and the tenant is fraudulent, then the tenancy contract will be considered null and void and the landlord can file a complaint and can claim full compensation.
Q: When is the tenancy contract considered terminated?A: The tenancy contract is considered terminated on the day of termination indicated in the contract; but if the tenant stays in the property without any objection from the owner, the tenancy contract is considered renewed for the same period of occupancy indicated in the contract.
Q: How can the rent contract be terminated by the concerned parties?A: If the landlord wants to terminate the contract, or the tenant wants to vacate the property then notification must be sent to the party concerned:A notification to vacate within 15 days for the rent periods not exceeding 3 months; a notification to vacate within 2 months for rent periods exceeding 6 months. In the tenancy contract, if there is a clause that stipulates a certain period for vacating the property, then this period should be upheld. All notifications to vacate the property must be written and officially handed over to the party concerned.
Q: When can the landlord ask the tenant to vacate the property?A: A landlord can ask his tenants to vacate the property only in the following cases: 1. If the tenant delayed in paying rent (being absent or away from country is not an excuse).2. If the tenant sublets part of the property without prior approval of the owner.3. If the tenant has breached the contract in any manner (effected changes to the property, or used property for other purposes than declared etc).4. If the tenant of a commercial property closes the property for over 6 months without a reasonable excuse, even if he was regular with the payment of the rent. 5. If the property becomes unfit for occupancy, or the owner has gotten official permit to demolish it.6. If the owner wants to demolish the property for the following reasons:After 25 years of building it. If the municipality grants him an extension of area for building wherein he can demolish and rebuild a bigger structure. Vacation of property becomes effective after the owner informs the tenant that he acquired all the necessary permits to demolish and rebuild. He should rebuild within 6 months from the date of getting the permits, otherwise the vacating tenant can reoccupy the property and demand necessary compensation.7. If the landlord wants to build an additional floor to the rented building, and to do so requires evacuation of tenants, then the owner should start construction within six months form the date of getting permits, otherwise the tenants have the right to reoccupy property or demand compensation.8 If the owner decides to add a floor to the rented building without demanding the tenants to vacate, construction should not affect the tenants; if it does, then tenants can abrogate the contract or seek rent reduction.9. If the owner or one of his close relatives needs to use the property, but he does not do so within a period of 6 months, and does not present a reasonable excuse, then the tenant has the right to ask for compensation.10. If the rented property is part of owner’s residence and he wants to use it for himself, or his close relatives (son, cousin, uncle), or his dependents and this must be proven in the court and can only happen if it is the only property of the owner.11. If a commercial property (stores, shops, offices etc) is owned by a minor whose legal guardian rented it, when minor attains legal age (major), he can demand his property to be vacated for him to use it within 6 months from vacating the property; otherwise the tenant can reoccupy the property or demand compensation.12. If the property was used for commercial purposes or to practice a certain trade or profession, and the tenant was deported by court order or by Ministry of Interior administrative order.
Q: Will the tenant be compensated in the above mentioned situations?A: In certain cases (para 4, 6, 7, 8, 9, 10) the judge has the right to grant the tenant a period of 6 months to vacate the property without paying rent or any compensation to the owner. If the judge gives a period to vacate less than six months, then the rest should be compensated to the tenant by an amount equivalent to rent for the remaining period.Regarding compensating the tenant when the owner decides to demolish in accordance with cases 6 & 7 indicated above as follows:If the period granted by the court or landlord for vacating the property is less than six months, then the owner must compensate the tenant for the rest of period to complete 6 months, and if the tenant has been occupying the property in accordance with agreement for more than 6 years, he is entitled to the above compensation in addition to the amount equivalent to 6 month’s rent.The tenancy contract is not terminated if the owner or tenant dies, but tenant’s inheritors or family can demand termination of contract.
Q: Assuming the contract is terminated, then what would be the obligation of the tenant?A: When the tenancy contract is terminated for whatever reason, it is imperative that the tenant should leave the property in good condition as he received it, but if he stays in the property after termination of contract and without permission from the owner, then the owner can double charge him for the period of overstay.
Also, it goes without saying that the owner can get an eviction order from court if there is a legitimate reason to do so. Damages resulting from natural causes are not considered the tenant’s responsibility.Labeed Abdal is the owner and founder of a law firm named after himself.
Labeed@lalaw.com.kw
http://www.labeedabdal.com
By Francis A. Clifford CardozoArab Times Staff
http://www.arabtimesonline.com/kuwaitnews/pagesdetails.asp?nid=22277&ccid=9
KUWAIT CITY, Sept 15: In case of a dispute between the landlord and the tenant over rent, certain factors are taken into consideration by the court to ascertain whether the rent warrants a hike or not. These factors include: the prevalent rent of similar properties, size, quality, architectural finish etc, says a Kuwaiti lawyer, Labeed Abdal. After the tenancy contract is concluded, the landlord must hand over the property in good condition, and if the tenant discovers any defects that are unacceptable to him, then he can have the contract cancelled and claim compensation.
In an exclusive interview with the Arab Times on Sunday, Abdal talked about various aspects of the Tenancy Law.
Q: What matters does the Kuwait Tenancy Law regulate? A: This law covers the rental of residential flats, houses, buildings, land for storage use, offices, warehouses etc.
Q: What are the obligations of the landlord?A: The tenancy contract obligates the owner of the property to entrust his property, subject to the tenancy contract which must specify the rented property, including the rent for a specified or unspecified period of time without any obstructions.
Q: What standards are applied to estimate the rent increase, especially if a dispute arises between the landlord and the tenant?A: In event of a dispute between the landlord and the tenant regarding rent, certain factors are taken into consideration by the court to decide whether the rent should be increased or not. These factors include: the prevalent rent of similar properties, size, quality, architectural finish etc.
Q: What procedures are followed with regards to the rent contract?A: All tenancy contracts must be written; old unwritten contracts are governed by rules and regulations prevalent at the time of the verbal contract. This can be proven by witnesses or receipts in event of a disagreement over the rent.
Q: What would be the solution if there is a dispute between many tenants for one premise?In such a situation, the court accords priority to the first tenant provided he has a proven contract date preceding all others. The rest can seek compensation in the court if they have valid grounds.
Q: What happens if a tenant receives defective rented property?A: After the tenancy contract is concluded, the owner must hand over the property in good condition, and if the tenant discovers any defects that are unacceptable to him, then he can have the contract cancelled and claim compensation.
Q: How does the Tenancy Law regulate the issue of maintenance?A: A landlord must do maintenance to the rented property at appropriate times (during holidays, vacations etc). If he does not undertake this responsibility, then the tenant has the right to seek court permission to do so, and incur the reasonable costs on the owner. Suppose if the owner affirms that maintenance costs are inflated, then the judge has the right to adjust the figure in such a way as not to overcharge the owner while the rest is borne by the tenant. If the tenant does not accept to pay, then he can ask the judge to cancel the contract. Also the judge will take into account the rent amount and duration of stay in the premise regarding compensation.
Q: How does the law regulate the necessary repairs? And what if the tenant suffers any damages in the process?A: A tenant cannot refuse the owner to carry out any repairs or maintenance, or renovation, but the tenant can claim compensation or demand reduction of rent if he suffers any damages while the repairs are being done. The tenant can also have the contract terminated. Nonetheless the tenant and the owner can add fresh terms in the contract.
Q: What is the tenant’s obligation regarding the rent and how is it governed by the law?A: The rent must be paid at the beginning of every month, or as agreed. In case of any disagreement with owner for whatever reason, the rent must be deposited in the Execution Department of the Justice Palace or Courts within 20 days from the date of rent payment. This should be done after the tenant officially offers the rent to owner and he refuses to accept the same. The Execution Department then informs the owner regarding the deposit within 5 days. But if the owner accepts the money deposited in Execution Department for 2 consecutive times, then the tenant can deposit further rents in the Execution Department. Also the tenant can pay the rent directly to the owner any time, if the owner agrees to receive the same and gives him the receipt.
Q: Is it possible to withdraw the rental money from the Execution Department?A: A tenant cannot withdraw the money once he deposits it with the Execution Department unless he gets a court ruling to this effect, or permission from the landlord.
Q: When is it possible to amend the rent in the contract?A: It is legally possible to amend the amount of rent after 5 years, or lapse of contract period if the contract is valid for more than 5 years, bearing in mind the rent value of similar property. It should be noted that the rental hike should not exceed 100 per cent.
Q: What are the limits set for any structural changes in the property if the tenant wishes to do it?A: The tenant should not effect any structural changes to the property, and if he does, then the owner has the right to ask the tenant to restore it to its original condition.
Q: What are the obligations of the tenant in the rent contract?The tenant must take good care of the property he uses; he should maintain it properly (sanitary fittings, paints, doors, electrical fittings, etc) unless the agreement between owner and tenant dictates otherwise, or the owner willingly does that.
Q: What are the other obligations?A: The tenant is responsible for any abuse of the property; any damage suffered to the property while he/she is occupying it is their sole responsibility. The tenant should not sublet the property or part of it, unless permitted by the owner.
Q: How does the Tenancy Law regulate subletting?Subletting can only be done with the approval of the landlord. If the tenant has taken permission to sublet the property or part of it, and after some time leaves the property, then the rent relation between owner and tenant will be transferred to the one who rented the entire property from the tenant.
Q: What if the subletting is done without permission of the owner?A: In case of subletting parts of the property, the owner has the right to ask the tenant, who sublet parts of the property without the consent of owner to vacate the property and this can be done by a court order, thereby allowing the landlord to claim damages if there were any.
Q: What happens if the landlord sells the property?A: In case the owner sells his property to another party, and if the tenant knows of the sale, then he should pay the rent to the new owner, and the tenancy contract with the previous owner will be considered effective till a new one is drawn by the new owner without affecting the period of time needed to amend the rent (5 years).
Naturally the new owner should inform the tenant about the change of ownership; if he fails to do so, and the tenant pays the rent to the previous owner, then the new owner must claim his money from the previous owner. But if he proves beyond doubt that the tenant knew about the sale of the property and yet paid the previous owner, then he can claim the rent from the tenant regardless of what the tenant paid to the previous owner. Also if the new owner is not known to the tenant, then the latter can deposit the rent in the Execution Department.
Q: What action can a new landlord take if he discovers that the rent contracts are fraudulent?A: If the new owner discovers that the tenancy contract between the old owner and the tenant is fraudulent, then the tenancy contract will be considered null and void and the landlord can file a complaint and can claim full compensation.
Q: When is the tenancy contract considered terminated?A: The tenancy contract is considered terminated on the day of termination indicated in the contract; but if the tenant stays in the property without any objection from the owner, the tenancy contract is considered renewed for the same period of occupancy indicated in the contract.
Q: How can the rent contract be terminated by the concerned parties?A: If the landlord wants to terminate the contract, or the tenant wants to vacate the property then notification must be sent to the party concerned:A notification to vacate within 15 days for the rent periods not exceeding 3 months; a notification to vacate within 2 months for rent periods exceeding 6 months. In the tenancy contract, if there is a clause that stipulates a certain period for vacating the property, then this period should be upheld. All notifications to vacate the property must be written and officially handed over to the party concerned.
Q: When can the landlord ask the tenant to vacate the property?A: A landlord can ask his tenants to vacate the property only in the following cases: 1. If the tenant delayed in paying rent (being absent or away from country is not an excuse).2. If the tenant sublets part of the property without prior approval of the owner.3. If the tenant has breached the contract in any manner (effected changes to the property, or used property for other purposes than declared etc).4. If the tenant of a commercial property closes the property for over 6 months without a reasonable excuse, even if he was regular with the payment of the rent. 5. If the property becomes unfit for occupancy, or the owner has gotten official permit to demolish it.6. If the owner wants to demolish the property for the following reasons:After 25 years of building it. If the municipality grants him an extension of area for building wherein he can demolish and rebuild a bigger structure. Vacation of property becomes effective after the owner informs the tenant that he acquired all the necessary permits to demolish and rebuild. He should rebuild within 6 months from the date of getting the permits, otherwise the vacating tenant can reoccupy the property and demand necessary compensation.7. If the landlord wants to build an additional floor to the rented building, and to do so requires evacuation of tenants, then the owner should start construction within six months form the date of getting permits, otherwise the tenants have the right to reoccupy property or demand compensation.8 If the owner decides to add a floor to the rented building without demanding the tenants to vacate, construction should not affect the tenants; if it does, then tenants can abrogate the contract or seek rent reduction.9. If the owner or one of his close relatives needs to use the property, but he does not do so within a period of 6 months, and does not present a reasonable excuse, then the tenant has the right to ask for compensation.10. If the rented property is part of owner’s residence and he wants to use it for himself, or his close relatives (son, cousin, uncle), or his dependents and this must be proven in the court and can only happen if it is the only property of the owner.11. If a commercial property (stores, shops, offices etc) is owned by a minor whose legal guardian rented it, when minor attains legal age (major), he can demand his property to be vacated for him to use it within 6 months from vacating the property; otherwise the tenant can reoccupy the property or demand compensation.12. If the property was used for commercial purposes or to practice a certain trade or profession, and the tenant was deported by court order or by Ministry of Interior administrative order.
Q: Will the tenant be compensated in the above mentioned situations?A: In certain cases (para 4, 6, 7, 8, 9, 10) the judge has the right to grant the tenant a period of 6 months to vacate the property without paying rent or any compensation to the owner. If the judge gives a period to vacate less than six months, then the rest should be compensated to the tenant by an amount equivalent to rent for the remaining period.Regarding compensating the tenant when the owner decides to demolish in accordance with cases 6 & 7 indicated above as follows:If the period granted by the court or landlord for vacating the property is less than six months, then the owner must compensate the tenant for the rest of period to complete 6 months, and if the tenant has been occupying the property in accordance with agreement for more than 6 years, he is entitled to the above compensation in addition to the amount equivalent to 6 month’s rent.The tenancy contract is not terminated if the owner or tenant dies, but tenant’s inheritors or family can demand termination of contract.
Q: Assuming the contract is terminated, then what would be the obligation of the tenant?A: When the tenancy contract is terminated for whatever reason, it is imperative that the tenant should leave the property in good condition as he received it, but if he stays in the property after termination of contract and without permission from the owner, then the owner can double charge him for the period of overstay.
Also, it goes without saying that the owner can get an eviction order from court if there is a legitimate reason to do so. Damages resulting from natural causes are not considered the tenant’s responsibility.Labeed Abdal is the owner and founder of a law firm named after himself.
Labeed@lalaw.com.kw
http://www.labeedabdal.com
By Francis A. Clifford CardozoArab Times Staff
http://www.arabtimesonline.com/kuwaitnews/pagesdetails.asp?nid=22277&ccid=9
Monday, September 15, 2008
انقلاب إداري
انقلاب إداري
كتب لبيد عبدال :
يبقى رئيس مجلس الوزراء والوزراء، وفق احكام الدستور، مسؤولين عن اعمالهم الوزارية امام مجلس الامة، في شأن كل الامور الداخلة في اختصاصاتهم.هذا الامر في حقيقته وواقعه، يقتضي الوقوف صفا واحداً من قبل طاقم الوزارة خلف الوزير، في شأن أي سؤال، او استجواب، او تحقيق برلماني يقدم له، او لرئيسه في مجلس الامة، وذلك من حيث تزويده بالبيانات والمعلومات اللازمة للرد والاستعداد لمواجهة وسائل الرقابة البرلمانية.ورغم ان الوزير في وزارته هو القائد الاداري الاعلى لاعمال الوزارة، فان مسؤوليته تبقى سياسية امام البرلمان، عن اي خلل او اعوجاج اداري يقع في وزارته، ويشكل انحرافا عن واجبه في خدمة الناس، وتحقيق المصلحة العامة.ورغم ان الدستور يكفل لاعضاء مجلس الامة الحق في الرقابة على اعمال الحكومة، فإنه في المقابل يكفل للحكومة الحق الكامل بالدفاع عن وجهة نظرها، وتقديم ما لديها من اسانيد وادلة تبرر موقفها، او قراراتها.وقد اثبت الواقع أنه في الكثير من الاستجوابات والمساءلات السياسية الاخيرة كان حق الحكومة بالدفاع عن نفسها قد اعتراه الكثير من الشوائب والاضطرابات، التي تكاد توصف بالانقلاب الاداري، اذ اصبح الموظف في الادارة منقلبا اداريا على وزارته، وبدلا من قيامه بدعم موقف الوزير في ما يتعرض له من مساءلة سياسية، فإنه يقوم بدور عكسي، عند قيامه بتسريب المعلومات والمستندات، وبالمخالفة لواجباته الادارية، ضد الوزير، او حتى رئيس مجلس الوزراء، وتحقيق مآرب ومنافع شخصية في خضم صراع القوى السياسية، ولعبة الكتل التجارية المتسيسة. وامام ندرة التضامن الوزاري في الكويت، الذي يكون مطلوبا في جله عند حالات المساءلة السياسية، ووجود الانقلاب الاداري المذكو داخل الوزارة، فإنه لا يبقى امام الوزير سوى مواجهة مطرقة مجلس الامة، او سندان مجلس الوزراء، وبالتالي تحمل نتائج تلك الهوة السحيقة في ما بين ما هو كائن وما يجب ان يكون، على الاخص ما بين واجب فريق الوزارة بصد الهجوم والمحافظة على خطة الدفاع، وواقع حال الاختراق والتسلل الداخلي للوزارة، الذي لا يحتاج المرء معه الى كثير عناء، لكشف آثاره السلبية في ضعضعة موقف الوزير سياسيا، وبالتالي اسقاطه
وتوابعه، مع كل ما يترتب على ذلك من آثار.
لبيد عبدال
Thursday, September 4, 2008
واجب حماية الأرواح
واجب حماية الأرواح
كتب لبيد عبدال :
ان حملة استخدام جهاز الرد من دون حمل السماعة في السيارة، وكذلك ربط حزام الامان من الوسائل المهمة للتقليل من فقد الارواح التي تسقط في حرب الشوارع المستمرة، والتي تزهق على ارضها الآلاف من الابرياء، خلال ثوان معدودات من فقد التركيز والانتباه اثناء القيادة، ومن ثم وقوع الحوادث الاليمة التي تحصد الاخضر واليابس، خاصة عند الاخذ في الاعتبار ما اكدته منظمة الصحة العالمية عبر موقعها الالكتروني، من ان الدهس والقتل اللذين يقعان بسبب حوادث السيارات، يعدان من ابرز اسباب الوفاة، الى جانب الامراض الاخرى القاتلة كالسرطان والقلب وغيرهما.ولهذا، فالامل يبقى كبيراً ان تستمر الحملات والرسائل الاعلامية بالصحافة، والراديو، والتلفزيون، والانترنت، للتوعية العامة لكل الاجيال وبلغات متعددة، تغطي جمهور المواطنين، وكذلك المقيمين، الذين هم في تزايد مستمر، وذلك ليس فقط بشأن ربط حزام الامان، او عدم استخدام الهاتف النقال اثناء القيادة، بل اضافة الى ذلك ضرورة التزام قادة المركبات باحترام خطوط المشاة، وتمكينهم من العبور بسلام من خلال مزيد من برامج التوعية، ووجود مزيد من رجال الشرطة لمراقبة الطرق، والتواجد عند الممرات الرئيسية بواسطة شرطة الادارة العامة للمرور.اذ يبقى تواجد رجال الشرطة، بالزي الرسمي ليس فقط سبيلا لتنظيم المرور وحفظ الامن، وانما يعد ايضا وجها وطنيا وحضاريا للدولة الموجودة، والجميلة، والمنظمة.
ضوء وظل:لا يمكن تجاهل الدور المهم والمشرق لرجل الشرطة السيد محمد بلال منصور، المتواجد دائما لتنظيم المرور على شارع دمشق، بين منطقتي السرة وقرطبة، وكذلك في منطقة الجابرية قرب دوار مستشفى هادي، لما يقوم به من عمل مميز في كل عام، خصوصاً في وقت العودة الى المدارس.
لبيد عبدال
‘Lack of Cyber laws makes it impossible to fight Net crimes’
‘Lack of Cyber laws makes it impossible to fight Net crimes’
KUWAIT CITY : Internet-related crimes are on the rise in Kuwait and the lack of Cyber laws makes it impossible to tackle such fraudulent practices, says a Kuwaiti lawyer. Speaking to the Arab Times on Wednesday, Labeed Abdal added that hackers are increasingly targeting Kuwait and many other countries, knowing full well that they can get away with their crimes. He went on to explain that some people send abusive emails to settle personal scores and that the law enforcement agencies are unable to act on such matters due to non-existence of Cyber laws, “which must be in tune with the latest changes in the Internet domain.”
Citing an example, he said, recently a woman approached a police station to file complaint with regards to a derogatory email but the police refused to entertain her complaint. “In such a scenario, we cannot blame the security authorities. There is an exigent need to establish what can be called as Cyber Police which will enable to monitor online activities, besides tracking down the source of abusive emails. In other words, the police will only register a complaint provided a person admits to his or her crime, thereby referring the case to prosecution.”
Confess“Supposing a person refuses to confess to his crime, then it becomes impossible for the authorities to register a complaint for the simple reason that they do not posses the required know-how and equipment to track down the source of an email, especially if the sender uses only his initials or if the mail is anonymous,” he added. Asked to comment on the decision of some prosecutors to draft a law with regards to Internet crimes, Abdal said he was unable to comment on the issue as he was yet to see the contents of the draft, which must be submitted to the parliament before being reviewed by the legislative committee.
Stressing that many unsolicited emails were originating from Africa, particularly from Nigeria, Abdal noted that one Kuwaiti lady was recently duped by some unscrupulous elements after she fell prey to a fraudulent email.He observed that the lady was sent an email indicating that she had won $ 50 million and — as a first step towards claiming the prize money — she was required to send lottery organizers a certain fee in order to set in motion her paperwork. Abdal added that the unsuspecting victim was initially asked to send KD 150 and that the amount was to be sent to a person in the UK.
“When she sent the money, she was told that the money was insufficient and was asked to remit an additional KD 300. Moreover, she sent the money through a medium which makes it impossible to ascertain the identity of the receiver. She was later invited to the UK to collect her prize money.” “When she reached the UK, a certain George got in touch with her and took her to a shabby restaurant and she was told that the award ceremony would be kept low profile. She was then asked to fork out additional money towards certain other procedures.” He said that the lady continued to pay money until the amount reached KD 15,000 and that the woman nearly spent over two months in the UK.
Loan“Fed up with the dilly dallying, she returned to Kuwait. The sad thing is that the lady took loan from a bank to pay the fraudster with the aim of bagging the prize money. Though, she was issued receipts by the fraudsters, they are only in the form of computer print-outs. I am now coordinating with the authorities in the UK to track down the source of the email.” Had there been a Cyber Cell in Kuwait, then it would have helped in determining the source of the said email, he added. Abdal said that some fraudsters are using emails whose validity does not exceed more than a month, thereby making it impossible for the concerned authorities to identify the source.
“One of my female clients was being targeted by some people who tampered with her images making her look obscene and her pictures were being circulated in chatrooms. When we got to the bottom of the case, we found out that her obscene images were being circulated through an email account which was valid only for 30 days.” Commenting on blogging, he said some people in Kuwait are misusing the medium and that he supports freedom of speech provided it is regulated. “Sometimes it becomes paramount to prosecute bloggers, especially if they indulge in character assassination.”
By Francis A. Clifford CardozoArab Times Staff
http://www.arabtimesonline.com/client/pagesdetails.asp?nid=21784&ccid=9
KUWAIT CITY : Internet-related crimes are on the rise in Kuwait and the lack of Cyber laws makes it impossible to tackle such fraudulent practices, says a Kuwaiti lawyer. Speaking to the Arab Times on Wednesday, Labeed Abdal added that hackers are increasingly targeting Kuwait and many other countries, knowing full well that they can get away with their crimes. He went on to explain that some people send abusive emails to settle personal scores and that the law enforcement agencies are unable to act on such matters due to non-existence of Cyber laws, “which must be in tune with the latest changes in the Internet domain.”
Citing an example, he said, recently a woman approached a police station to file complaint with regards to a derogatory email but the police refused to entertain her complaint. “In such a scenario, we cannot blame the security authorities. There is an exigent need to establish what can be called as Cyber Police which will enable to monitor online activities, besides tracking down the source of abusive emails. In other words, the police will only register a complaint provided a person admits to his or her crime, thereby referring the case to prosecution.”
Confess“Supposing a person refuses to confess to his crime, then it becomes impossible for the authorities to register a complaint for the simple reason that they do not posses the required know-how and equipment to track down the source of an email, especially if the sender uses only his initials or if the mail is anonymous,” he added. Asked to comment on the decision of some prosecutors to draft a law with regards to Internet crimes, Abdal said he was unable to comment on the issue as he was yet to see the contents of the draft, which must be submitted to the parliament before being reviewed by the legislative committee.
Stressing that many unsolicited emails were originating from Africa, particularly from Nigeria, Abdal noted that one Kuwaiti lady was recently duped by some unscrupulous elements after she fell prey to a fraudulent email.He observed that the lady was sent an email indicating that she had won $ 50 million and — as a first step towards claiming the prize money — she was required to send lottery organizers a certain fee in order to set in motion her paperwork. Abdal added that the unsuspecting victim was initially asked to send KD 150 and that the amount was to be sent to a person in the UK.
“When she sent the money, she was told that the money was insufficient and was asked to remit an additional KD 300. Moreover, she sent the money through a medium which makes it impossible to ascertain the identity of the receiver. She was later invited to the UK to collect her prize money.” “When she reached the UK, a certain George got in touch with her and took her to a shabby restaurant and she was told that the award ceremony would be kept low profile. She was then asked to fork out additional money towards certain other procedures.” He said that the lady continued to pay money until the amount reached KD 15,000 and that the woman nearly spent over two months in the UK.
Loan“Fed up with the dilly dallying, she returned to Kuwait. The sad thing is that the lady took loan from a bank to pay the fraudster with the aim of bagging the prize money. Though, she was issued receipts by the fraudsters, they are only in the form of computer print-outs. I am now coordinating with the authorities in the UK to track down the source of the email.” Had there been a Cyber Cell in Kuwait, then it would have helped in determining the source of the said email, he added. Abdal said that some fraudsters are using emails whose validity does not exceed more than a month, thereby making it impossible for the concerned authorities to identify the source.
“One of my female clients was being targeted by some people who tampered with her images making her look obscene and her pictures were being circulated in chatrooms. When we got to the bottom of the case, we found out that her obscene images were being circulated through an email account which was valid only for 30 days.” Commenting on blogging, he said some people in Kuwait are misusing the medium and that he supports freedom of speech provided it is regulated. “Sometimes it becomes paramount to prosecute bloggers, especially if they indulge in character assassination.”
By Francis A. Clifford CardozoArab Times Staff
http://www.arabtimesonline.com/client/pagesdetails.asp?nid=21784&ccid=9
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