Protection from arbitrary eviction

Source: Protection from arbitrary eviction | Newsday (News)

AN economy in doldrums or other unforeseen circumstances may see tenants defaulting in paying rentals and landlords struggling to collect the said rentals.

BY EMMANUEL MAPOSA

The emergence of the Covid-19 pandemic is a case in point. The pandemic brought financial hardships to millions across the globe. Zimbabwe was not spared. As coffers dried, the possibility of people being evicted from rented houses sprung up.

At the start of the lockdown measures, the Zimbabwean government took positive steps and resolved to stop pending evictions for a defined period. The pandemic only brought to light the realities that many tenants live with on a constant basis. For this reason, this article looks at the eviction law in Zimbabwe encompassing both the rights of landlords and tenants.

From the onset, we should be clear that he law does not prohibit evictions from rented residential property if the conditions are met. Ordinarily, without payment of rent a lease agreement becomes void as only a tenant benefits from the agreement.

A tenant continues to enjoy the right of occupation while a landlord is prejudiced and benefits nothing. In fact, a landlord loses something apart from rentals as he or she will have to maintain the property from own pocket. Even the security deposit paid by a tenant at the start of occupation may prove insufficient to maintain the property after months of unpaid rent.

Landlords retain the right to derive value from their property and are not under an obligation to provide free accommodation to tenants. What is prohibited is arbitrary evictions. Arbitrary eviction is when a person (or people) is or are evicted in a manner that is not right or fair.

Arbitrary eviction usually happens when the eviction is done without following court procedures and allowing those affected to be heard. Section 74 of the Zimbabwean Constitution provides that no person may be evicted from their home or have their home demolished, without an order of court made after considering all the relevant circumstances.

The circumstances referred to above are encapsulated in section 30 of the Rent Regulations Statutory Instrument 32 of 2007. An Agreement of Lease, if any, may further provide for the circumstances under which the lease agreement may be terminated. The landlord should be guided by such documents when considering evicting a tenant.

The landlord cannot arbitrarily evict a tenant simply because he or she is in arrears with rentals. The landlord can demand payment of the arrears rentals with a specified timeframe for payment. Should the tenant fail to pay after the demand, the landlord can terminate the lease agreement and sue the tenant for eviction, payment of arrears rentals and holding over damages.

Where a landlord requires the property back for own use, the landlord must give the tenant three months written notice to vacate the premises unless the lease agreement provides otherwise. The notice should be in writing for it to be valid. Should the tenant refuse to vacate the property, the landlord may institute eviction proceedings and produce evidence of the cancellation of the lease agreement.

The tenant is also protected from arbitrary eviction where the landlord is or has sold the property to a third party. The tenant is entitled to remain in occupation of the property until his or her lease expires.

The tenant and new landlord must respect the terms of the lease agreement. The tenant is expected to abide by all the terms of the lease agreement and should continue to pay rentals to the new owner. Where the tenant fails to pay rentals agreed to with the previous owner, he or she commits a breach and is liable to the new owner. The new owner only has an obligation to adhere to the lease agreement if the tenant is willing to pay rentals and does pay the rentals.

For the above concept to operate, a tenant should demonstrate that he or she entered into the lease agreement with the previous owner before the sale of the property. A tenant cannot legally benefit from the lease agree that was fraudulently entered or one that was entered in bad faith. A tenant must also demonstrate that the new owner was aware of the lease agreement and bought the property with the knowledge of the lease agreement.

In conclusion, it is advisable for landlords to draft lease agreements in a manner that allows cancellation at the earliest possible moment, i.e. a month after a tenant defaulted. This will avoid further frustrations and losses of income. Fortunately, the law does not hold a hard and fast rule on the mandatory three months’ notice. On the part of tenants, they should be realistic and adjust their lifestyles by moving to an affordable accommodation the moment they see that they can no longer keep up with paying rent where they are currently residing.

Defaulting tenants should desist from rushing to the Rent Board for protection considering that the landlords will have been prejudiced already.

The Rent Board adjudicates disputes between tenants and landlords. Any aggrieved party (tenant or landlord) to a lease agreement can seek relief. The Board is required to conduct its business informally in as simple and approachable way as possible. It tries to simplify matters and it avoids being caught in technical and legal details of disputes.

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