Ejecting a problem tenant - NewsDay

Zimbabwe
newsday
7-9 minutes

MANY property owners are battling with collecting unpaid rental arrears owed by defaulting
tenants. It is a fact that with the economy in doldrums many tenants are genuinely struggling
to keep up with rent payments in terms of lease agreements. The poor economy is not a
tenants’ fault, but is also not the fault of landlords. Landlords retain their rights to derive
value from their property at all times. They are not legally obliged to provide free
accommodation to anyone, not even genuinely struggling tenants.

Rights: MIRIAM TOSE MAJOME

Without payment of rent a lease agreement becomes void as only one party benefits from the
agreement. The tenant continues to enjoy their right of occupation while the landlord is
prejudiced and enjoys nothing. We have so far discussed the elements of a lease agreement
and the obligations incumbent upon both lodgers and landlords. We also dispelled the
commonly held misunderstanding that payment of security deposits is illegal. It is not illegal
to pay a refundable security deposit, but a non-refundable deposit.

Cancelling a lease agreement

In general, landlords are advised to cancel lease agreements as soon as possible after the first
default by a tenant. This means within the following month before the next month’s rent is
due. Ruthless though it may seem it is actually best for the tenant. It allows them to cut their
losses sooner rather than later. It is not rocket science that if they cannot get rent for one
month they cannot get rent for two months or three or four.

The tendency is to be optimistic and let one month’s default become two months then three
and before anyone can say Jack Robinson the arrears are running into several hundreds or
thousands of dollars. There is no point at all to a lease agreement where rent is not being paid.

With experience, that type of tenant is a typically problem tenant. Instead of cutting their
losses, being realistic and moving to cheaper lodgings they use any means to cling onto the
property for as long as possible without paying rent. It is not wise for a landlord to tolerate
and entertain a tenant while they accrue arrears. It may be deemed as a waiver of their rights
in the lease agreement.

In NRZ Contributory Pension Fund vs Sunray Stores HH 85/07 the court held that where a
tenant makes a late payment of rent the landlord must as soon as possible before the next
month’s rent is due cancel the agreement. Acceptance of subsequent late payments can be
deemed as condoning the breach. Where a tenant is in breach it is not necessary to give them
the mandatory three months’ notice period. The landlord can cancel the agreement
immediately and demand immediate evacuation from the premises. If the tenant refuses to
vacate the landlord should immediately set about getting an eviction order.
Rent litigation

The property market is one of the biggest casualties of any sluggish economy. Many
commercial and residential properties in the country are presently vacant and struggling to
get tenants. It is typically a tenants’ market because market forces have forced rentals down
and many out of their lodgings. Many potential lodgers have benefitted from low cost
housing schemes mushrooming all over the country. This is good for low income earners, but
bad for landlords and the property market. The challenge is to not only secure a tenant, but a
quality tenant who is responsible and capable of paying rent on time and looking after the
property so that it maintains its value. This is opposed to the litigious tenant who derives joy
from engaging in lengthy legal battles with their landlord and uses and abuses court processes
to cling onto the leased property. When a landlord gets an eviction order the tenant appeals
and retains the right to continue occupying the property indefinitely until the appeal is
determined. This is the type of tenant who rushes to the Rent Board with the intention of
being made a statutory tenant. When a tenant becomes a statutory tenant they cannot be
evicted until final determination of the matter as long as they are paying the statutory rent set
by the Board. Needless to say statutory tenancy is always financially prejudicial to the
landlord.

Tacit landlord’s hypothec

The landlord has to be proactive in protecting their rights and ensuring payment of the
arrears. The landlord is allowed to attach certain of their tenant’s movable property as
security for the outstanding rent obligations by a court order. The attached movable property
must be located on the leased premises and is typically household goods or vehicles. The
landlord applies for the order without notifying the tenant hence the term “tacit”. If the tenant
is notified they will remove their property and the purpose of it being a tacit order is defeated.
The landlord can then proceed to institute eviction proceedings with the attached goods
serving as security. The tenant cannot remove the goods from the premises because that is a
criminal offence. The landlord has a right over the attached property but cannot sell it and
should return it when the arrears are paid. The property is only sold in execution if a court
order allows it.

The Rent Board

The Rent Regulations Statutory Instrument 32 of 2007 is in terms of the Housing and
Building Act Chapter 22:07. It is worth acquiring copies of relevant legislation that impact on
everyday living from Government Printers. Regrettably the majority of Statutory Instruments
are not yet available online. Rent Regulations are applicable to places of dwelling such as
rooms, flats, apartments and other immovable property occupied under a lease. The Rent
Board adjudicates disputes between lodgers and landlords. Any aggrieved party to a lease
agreement can seek relief. It is not exclusively for lodgers because landlords can equally
approach it if aggrieved by their tenants. The board is required to conduct its business
informally in as simple and approachable way as possible. It is not bound by the strict rules of
evidence and procedure. It is empowered to do whatever it can to bring substantial justice to
matters without getting bogged down with technical details and legal propriety.

Approaching the board

It can be by a letter outlining the dispute. The board will set a date for the hearing and notify
all parties. At the appointed time and place the parties appear before the board and present
their cases and answer to questions posed by board members. Parties may be represented by
legal practitioners or any other duly appointed persons. Oral and written submissions are
made as directed by the board.
Parties in absentia may be represented by proxies as is common for landlords outside the
country. If a landlord wins the case at the
Rent Board they obtain an ejectment certificate which has to be confirmed as an order by the
Magistrates’ Court. If the tenant still refuses to vacate, the Messenger of Court can forcibly
eject them. Even after ejectment the landlord can still pursue outstanding rent arrears through
other ways provided by the law.

LEGAL MATTERS: When the landlord

demands his dues
Zimpapers Digital
11-14 minutes

This week I centre attention on the lease agreement. A lease agreement can be in respect of
either movable or immovable property. In this discussion, l focus on the lease for commercial
or residential immovable properties.

As is suggested by its name, “immovable property” refers to any immovable object or other
item of property that cannot be moved without destroying or altering it or an object that is so
firmly attached to land that it is regarded as part of that land.

The lease agreement is one of the most common forms of contracts. I think it ranks second
only to the contract of sale. The reasons for this are many but it is primarily because the
demand for housing in our country far exceeds the properties available. As a result, many
citizens in urban and semi-urban areas in Zimbabwe are tenants and are for that reason,
familiar with the lease agreement.

With respect to the commercial lease agreement, businesses are constrained to construct their
own premises by the high costs involved, so renting operating space remains the only option
for the great majority of them.

Unlike in South Africa where, in terms of their Rental Housing Act, every lease agreement
has to be in writing, in Zimbabwe the situation is different because here, a lease agreement
can either be oral or in writing. It is, off course, reasonable and convenient that a lease
agreement be in writing at all times to avoid problems.

Otherwise the lease agreement comes into being when one party called the lessor or the
landlord, agrees to let or give to the other, called the lessee or tenant, the use of an
ascertained property at an agreed rental amount over a specified period of time and for a
specified usage. The lessor does not have to be the owner of the premises to be leased. This
can be anyone who has authority over the property.
Both parties to the agreement have duties and rights that flow from the agreement by
operation of the law. Interestingly, the duties of the one are the rights of the other and vice
versa. I look at these in turn.

The landlord

As soon as the contract is concluded, the landlord has a duty to deliver or make available to
the tenant, the unoccupied premises at the time agreed upon together with all the essential
accessories for its proper use and enjoyment. In law, this is referred to as delivery of vacant
possession. Conversely, therefore, the tenant has a right to receive the property in the agreed
condition.

The landlord also has a duty not to disturb or harass the tenant or make it difficult for the
tenant to stay at the leased premises.

In other words, the landlord must guarantee quiet enjoyment of the property by the tenant. If
the landlord wishes to inspect the property, as he is entitled to do, he should not do so without
giving the tenant reasonable prior notice for such inspection.

Otherwise the landlord or anyone employed by him, is not entitled to enter upon the premises
willy-nilly without first seeking the authority of the tenant. Consequently, therefore, the
tenant has a right not to be unduly disturbed or harassed by the landlord.

It is a further obligation of the landlord to effect repairs particularly to the super structure and
the exterior of the premises.

This means that any problems relating to the chimneys, roof, cracks in the walls, leaking or
blocked gutters and any such defects to the structure are the direct responsibility of the
landlord.

If the tenant should take upon himself and effect such repairs, then he will be entitled to claim
reimbursement of the costs incurred from the landlord. This amounts to the tenant’s right to
expect the landlord to attend to the said defects within a reasonable period of being so
notified by the tenant.

Rates and other taxes relating to the property are for the landlord’s account unless the parties
have specifically agreed that these be paid by the tenant.

The tenant

The very first duty that falls on the tenant is to pay the agreed rental amount on or before the
due date. This is critical because rent is the very soul and spirit that ensures that the lease
agreement remains alive otherwise without it, there is no contract and the landlord would be
entitled to seek the ejectment of the tenant from the premises.

Legally, the landlord has no right to eject the defaulting tenant without a court order. Put in
another way, once the tenant is in breach of the lease agreement, the landlord is not entitled to
take the law into his own hands and throw the tenant into the streets. The laid down court
process must first ensue before the tenant may be removed from the property in question. By
logical reasoning, therefore, the landlord has a right to receive rent from the tenant on or
before the agreed date.

The tenant’s next duty is to take good or reasonable care of the premises and to respect the
rights of his neighbours. The landlord, therefore, has a right to expect the tenant to care for
the premises reasonably.

Minor repairs to the leased premises chiefly in the interior thereof are the responsibility of the
tenant. These may be such small things like fixing plugs, replacing light bulbs, interior
decorations or ensuring that the garden and the surrounding environment is generally kept
clean and tidy.

Arrear rentals

If the tenant falls into arrears with his rental payments, the landlord will accrue a legal right
called in law, “lessor’s tacit hypothec for rent”. When reduced to its bare bones, this refers to
a right that accrues to the landlord over the tenant’s property sitting at the premises in
question. Effectively, the tenant’s property will become the landlord’s security for the
payment by the tenant of the arrear rentals.

In this instance, the landlord must move with speed and approach the court “secretly” for an
order to prevent the tenant from ever removing his property from the premises until the
arrears are settled.

I say “secretly” because such an application is permissible to be made without notice to the
tenant as doing so on notice may defeat its purpose because the tenant may immediately
vacate or escape from the premises upon being served with the relevant court papers.

Good tenancy deposit

Normally and rightly so, at the inception of the contract, landlords insist on a good tenancy
deposit which is usually equivalent to one month’s rental amount.

Problems and misunderstandings usually arise at the end of the lease agreement when the
tenant will now be vacating the premises.

A lot of disputes have arisen where the landlord will be refusing to refund the deposit
alleging that the same was/is going to be appropriated towards certain damages that were
allegedly caused by the tenant to the property.

At the same time, the tenant will be contending that the damages alleged were not caused by
him but have always been present or something of the sort. I locate a gap in our law with
regards to this issue. As the law currently stands, the landlord is allowed to take and keep the
deposit amount in his pocket all throughout the subsistence of the lease agreement.

It is suggested that disputes surrounding the good tenancy deposit could be averted if the
deposit amount was placed in the hands of a third party, probably a statutory independent
body such as the Rent Board to which anyone wishing to rent out a property would be
registered.
So, upon termination of any lease agreement, the landlord would first have to prove the
damages caused to his property by the tenant before claiming that deposit from the
independent body.

Perhaps time might have now come for those in the real estate sector and elsewhere to debate
on this matter with a view of eventually placing it before Parliament for formulation of some
piece of legislation to take care of this thorny issue.

The other option is the South African approach where the landlord is required by law to keep
the good tenancy deposit in an interest bearing account.

If at the end of the lease agreement, it is agreed that there were no damages caused to the
property, the landlord is obliged to return the deposit in full together with the accrued interest
to the tenant.

This option sits well with me because then the landlord is prevented from squandering the
amount all throughout the period of the lease agreement much to the discomfort of the tenant.

The Rent Board

The Rent Board was set up as an instrument to control the relationship between the parties to
a lease agreement. It handles disputes relating mainly to rent increases, notices to vacate the
premises and so on.

With the apparent high demand for accommodation versus a very low supply of dwellings, it
is inevitable that rentals will sky rocket. Economists refer to this as the law of supply and
demand.

So the Rent Board was set up as a much cheaper route to justice as its procedures are very
informal so that parties do not really need lawyers to represent them in the hearings. The
biggest weakness of the Rent Board though is that it has no mechanisms with which to
enforce its rulings.

A landlord who has had a decision issued by the Board in his favour has to approach either
the High Court or the Magistrates Court for enforcement of that order.

What I am saying is that if one gets for example, a Certificate of Ejectment authorising him to
evict his tenant, that does not give that landlord the licence to remove the tenant himself.

The eviction itself has to be done by either the Sheriff of the High Court or the Messenger of
Court. These two officials act only in terms of court orders.

That is why the holder of an Ejectment Certificate must proceed to the said courts for
enforcement of the Board’s decision. Access to the Sheriff or the Messenger is only through
the court.

Amazingly, however, despite its apparent lack of enforcement power, the Rent Board actually
successfully resolves the great majority of disputes that are brought before it.

Sale of the property

by the landlord

But what becomes of the lease agreement in the event the landlord decides to sell the property
while the agreement is still running?

Put in another way, is the landlord free to sell the property while the tenant is still in
occupation? Is the landlord to wait for the lease to expire before he can sell the property?

The answer is simple. The landlord is free to sell the property at any time. He can even use
the property as security for his own debts while the lease agreement is still running.

When that occurs, the tenant’s rights will remain unaffected except that he will from then on,
pay the rental amount to the new landlord.

The new landlord will get into the shoes of the previous owner and will, therefore, be bound
by that lease agreement.

If, however, the tenant had paid rent to the previous landlord in advance, he will have to pay
again to the new owner and then claim the amount prepaid to the old landlord from him is a
separate action.

In law, they refer to this as “hire goes before sale” the meaning of which is that the tenant has
superior rights over the property than the purchaser of that property at least for the remaining
period of that particular lease agreement.

Termination of the

agreement

Is a tenant who is in breach of the lease agreement entitled to a notice to vacate the premises?
No, he is not. However, as already said above, the landlord must follow due process before
evicting the defaulting tenant.

Otherwise if the lease agreement expires and not renewed but the parties nevertheless
continue to abide by the terms and conditions of the expired lease, the matter assumes a
slightly different colour. From then onwards, the tenant dons a new title, he will be called a
Statutory Tenant who may only be evicted in terms of that expired agreement.

thestandard.co.zw

Tenants turn tables on landlords

5-6 minutes

It appears tables have turned in Zimbabwe’s property sector where the tenant has suddenly
become more powerful than the landlord because of an environment where too many
properties now chase very few tenants.
BY TARISAI MANDIZHA

Various factors have led to the situation where accommodation has outstripped demand,
among which is the prevailing liquidity crunch and the general economic difficulty the
country is facing.

The economic challenges have resulted in the closure of many companies and the sudden glut
in both office and residential accommodation.

There has been a huge movement of tenants from their rented premises to cheaper places, or
for others that may have closed shop or lost jobs, relocating as they go out of business.

Real Estate Institute of Zimbabwe president Siza Masuku said while traditionally landlords
had the final say on leasing matters, the current liquidity crunch in the market had
necessitated the need for greater flexibility in their relationships with tenants.

“Some property players are offering rent-free holidays and complimentary parking as a way
of attracting tenants in commercial properties.

“Other property players are offering discounts of between 10 to 20%, off the market rate,”
Masuku said.

He said reducing rentals was purely a business decision by the real estate players with the
objective of retaining occupancies in their property portfolios.

“This is also attributed to the fact that we now have a tenant’s market whereby they have a
variety of options to consider for their occupancy needs, due to the high rate of vacancies in
the market,” Masuku said.

He, however, said most property players had experienced a decline in their ability to collect
rent and operating costs timeously.

“This has had an effect of a high default rate by tenants. Some have entered into payment
plans or deed of settlements as a way of meeting their lease contractual obligations,” Masuku
said.

“However, due to the deflationary economic pressure affecting the economy, coupled with
the liquidity crunch, some tenants are also defaulting on these payment plans, resulting in
their evictions.

“The above has had an effect of reducing the collecting levels of rent income by property
players to around 70 to 80%.”

Until the new developments, landlords had always called the shots, with tenants at the
receiving end.

However, the sprouting up of co-operatives has given tenants the opportunity to become
landlords, meaning that many have moved out of lodgings to their own small properties.
A landlord in Harare’s Kensington suburb, Charles Nyabango told Standardbusiness last
week that the obtaining economic environment had seen a number of landlords living alone
on their properties because many people had moved to new residential places where it is
cheaper.

This, he said, had forced landlords to reduce rentals.

“At the moment, there are so many houses and if you trouble your tenants, they will go,” he
said.
“Times are difficult and people are looking for places which are cheap.

“People no longer care about such luxuries as electricity and will just move to their own
places where they do not have to pay any rent.”

A tenant from Mabvuku, Blessed Tafara, said there were now many empty houses in the
suburb as former lodgers moved to their own places at nearby Caledonia farm or had found
new lodgings at the new settlement where rentals are as little as $10 per room.

Masuku said retail space of up to 100 square metres in size was now fetching rent of between
$15 to $20 per square metre, depending on the location of the building.

He said that was the reason why there was now a proliferation of little subdivisions inside
shops where many different “shops” emerged out of a single room.

Commenting on the occupancy levels, Masuku said there was no supporting research, but
informal enquiries indicated that the industrial sector was the hardest hit, with voids reaching
60%, followed by the office sector, especially in the central business districts, with voids of
up to 40%.

Masuku warned that the property sector would remain depressed if the current liquidity
crunch in the economy persisted.

“Some players have already started streamlining or restructuring their property portfolios as a
way of remaining relevant in the market,” he said.

“Other strategies adopted by some players include disposal of their non-performing assets or
space re-configuration, according to market dictates.”