A contract of lease is an agreement between one party (landlord/lessor) and another (tenant/lessee) in terms of which the lessor gives to the lessee temporary use and enjoyment of property in return for payment of a specified amount.
It is not a requirement for the validity of a contract of lease that it be in writing. An oral lease agreement is as valid as a written lease. In fact a number of leases for residential properties are not written. It is however advisable to reduce a contract of lease to writing so as to reduce disputes on what would have been agreed to by and between the parties. The parties should make sure that they include the following terms in their contract;
- The description of the property let;
- The duration of the lease;
- The amount of rent payable and the payment intervals
Landlords and tenants should take note of the following salient issues in a landlord-tenant relationship;
- Parties should agree on who will pay the property tax, in the absence of express agreement it is implied by law that the landlord is liable for the property tax. Parties should take note that most town councils or local authorities issue combined bills.
- Where there is breach of the lease agreement by the tenant or if the tenant refuses to vacate when he/she should, the landlord cannot take the law into his/her own hands and forcibly ‘evict’ the tenant. The landlord should follow the law and eviction carried out by the Messenger of Court or Sheriff of Zimbabwe.
- If the landlord accepts late payment of rent and does not exercise his/her right to cancel the lease agreement, he/she may be taken to have waived his/her right to cancellation of the lease. In NRZ v Sunrey Stores (Pvt) Ltd HH85/07 the court held as follows:
It appears to me the settled position at law that where the tenant make a late payment of rent, the landlord must make his election within a reasonable time and at the latest, before the rent becomes due next month to cancel on account of the late payment of rent. Acceptance of a subsequent payment of rent is at law to be taken as an election not to proceed with cancellation on account of the past breach. (See Parkview Properties (Pvt) Ltd v Chimbwanda1998 (1) ZLR 409 (H)).
- A tenant does not have a right of retention (iusretentionis) that is he/she has no right to continue in occupation of the premises after termination as a lien against compensation for improvements (Ormashah v Karasa1996 (1) ZLR 584 (H)).
- If after termination of a fixed lease the tenant continues in occupation of the premises and the landlord accepts the rent then the lease is tacitly renewed for the period of the initial fixed lease agreement.
- In terms of the Rent Regulations if after the expiry of the lease agreement the tenant remains in occupation, pays rent within 7 days of due date and observe all other conditions of the lease then he/she is protected as a statutory tenant.
- If after termination of the lease the tenant remains in occupation of the premises, he/she should pay holding over damages which is an amount equivalent to the rent.
- The landlord can get an order for a tacit hypothec or a rent interdict as security for the payment of rent.
The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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