As we continue discussing bad debts we turn to the relationship between landlords and tenants. In many instances the relationship is fraught with mistrust both ways. Tenants complain mostly about oppressive lease agreements and the over bearing nature of landlords.
Rights: MIRIAM TOSE MAJOME
Landlords complain about the untrustworthiness of tenants. We discuss remedies open to landlords pertaining issues of damage to property by tenants and unpaid rentals. We will also discuss remedies open to tenants who are in hostile and oppressive tenancy agreements. We will start by looking at general aspects of the relationship and examine the Rent Regulations in detail next week.
Agreement of lease
This is a contract between a landlord (lessor) and a tenant (lessee) in which the lessor agrees to let out his or her property for a period of time. The lessee agrees to occupy and use the property and pay rent for the duration of the contract and lease. Ownership does not pass to the lessee unless it is a special kind of lease purchase agreement commonly called a ‘rent to buy’ lease. During the period of lease the tenant is responsible and accountable for occupation of the property and its use. The lease agreement states relevant information such as the rentals to be paid and the duration of the tenancy. It outlines the obligations and responsibilities of both the tenant and the landlord. Once signed by both parties the lease agreement is legally binding and is proof of the agreement. It can be used by either party to enforce it and compel performance of any obligation by the other party. Verbal lease agreements for residential properties are also valid and enforceable but are difficult to enforce in the event of a dispute. Lease agreements protect both the tenant and the landlord. Standard lease agreement forms can be obtained from stationery shops or online but it is best to have then drafted or reviewed by a lawyer. They should be adjusted to the particular circumstances.
Security deposits
They are also called good tenant deposits. There was a lot of interest generated by the 2010 judgment by Justice Patel which outlawed payment of non-refundable deposits. A Harare based businessman Zhongmin sued his landlord Jerome Okeke for refund of a deposit he had paid. A security deposit equivalent to a month’s rent is normally demanded by landlords. It is meant to mitigate against mishaps such as damage to the property caused by a tenant. It is also provisional security for rent when a tenant abandons the premises without notice. The judgement was that it was illegal to compel commercial tenants to pay non-refundable deposits and what is commonly termed ‘goodwill’. It is illegal and criminal to do that because it violates some provisions of the Commercial Premises Rent Regulations 1983. In any event it is the payment of non- refundable deposits that was ruled illegal and not the payment of deposits as a whole as commonly believed. Nothing precludes landlords from demanding refundable security deposits. If the tenant has not damaged anything that requires using the deposit or if they give sufficient notice to vacate they should be refunded the deposit in full.
Landlord’s obligations
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The landlord has a duty to make the leased premises available at the agreed time for the entire duration of the lease. This is called giving vacant possession. Essentials amenities like electricity and water have to be available unless specifically excluded. The land lord must guarantee the tenant undisturbed use and enjoyment of the property. The landlord remains responsible for major structural repairs to the property to ensure the tenant is not deprived of use of the property.
Rentals arrears
A lease agreement contains the rent amount and stipulates the frequency of payment. The rent and occupancy are the purpose of a lease agreement. If a tenant fails to pay rent they are automatically in breach of the lease agreement as is the case where landlord fails to make the premises available. The landlord has many options among them eviction and a claim for payment of arrears. Notably a landlord cannot simply eject a tenant from premises but has to obtain a court order first. It is illegal to arbitrarily evict tenants from property they are in occupation of even illegal occupation. Section 71(3) of the Constitution.
Tacit landlord’s hypotheca
If a tenant accrues rental arrears the landlord is allowed to attach certain of a tenant’s movable property as security for the outstanding rent obligations. This is called a landlord’s hypothec. In order to secure the outstanding rent a landlord can obtain an order allowing the attachment of a tenant’s movable property that is located on the premises usually household goods or vehicles. The landlord applies for the order without notifying the tenant hence the term ‘tacit’. If the tenant was to be notified they would remove their property and defeat the purpose.
Hence, the importance of ensuring that a lease agreement is written down because it is easier to prove. The landlord would then proceed to institute eviction proceedings and the attached goods will serve as security because the tenant cannot remove the goods from the premises. It would be a criminal offence.
The landlord will have a right over the tenant’s property but cannot sell it. The property should be returned when the outstanding rental is paid. The property can be sold in execution of the eviction order and to satisfy the claim for rental arrears.
Miriam Tose Majome is a lawyer and a teacher. She can be contacted on [email protected]
