Leasing is certainly the most common arrangement available in Zimbabwean law that allows for

occupation and use of real property for a specified period, subject to the terms and conditions

specified in the lease agreement. In this write up, the writer will look at the obligations on each

party and the remedies available in case of breach of contract for both the landlord and tenant. As

soon as the contract is concluded, the landlord has a duty to deliver or make available to the

tenant, the unoccupied premises. 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. It is a further obligation of the

landlord to effect repairs particularly to the super structure and the exterior of the premises. The

very first duty that falls on the tenant is to pay the agreed rental amount on or before the due

date. The tenant’s next duty is to take good or reasonable care of the premises and to respect the

rights of his neighbours.

A lease of immovable property is a reciprocal agreement/contract between one party (the lessor)

and another party (the lessee) in terms of which the lessor agrees to give the lessee the temporary

use and enjoyment of the property in return for payment of rentals. The lessor and lessee are in

other terms commonly known as landlord and tenant respectively.For a lease to be binding, the

lessor must agree to give the lessee the temporary use of the property and the lessee must agree

to receive the same. They must also agree on the property being leased as well as the rent for its

use and enjoyment

Like any other contract, a lease must be legal and must not be prohibited by statute, common law

or be contrary to public policy. For instance, if the letting of a certain property requires the

consent of an official and his/her consent was not obtained then the lease would be illegal.
A lease can also be illegal if the rent charged is more than that which is prescribed by the rent

board of the area. A lease that is illegal cannot be enforced at law as such neither party can bring

an action based on such a contract.

Landlord obligations

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 must give the tenant the right of possession of the property. This duty is

breached if, at the time the tenant is entitled to take possession, a third party has paramount title

to the property and the assertion of this title would deprive the tenant of the use contemplated by

the parties. Paramount title means any legal interest in the premises that is not terminable at the

will of the landlord or at the time the tenant is entitled to take possession.

In short, it is the lessor’s duty to keep the premises “wind and water-tight”.He/she is, however,

under no obligation to repair damages caused by the negligence of the lessee or those for whom

the latter is responsible.

It is a positive duty placed on the landlord to provide a tenant with a habitable dwelling. The

concept of habitability can be explained to be a dwelling that is suitable and safe for living and

includes sufficient space, protection from the elements of health threats, physical safety of the

tenant and the tenant’s household and visitors and a structurally adequate building. The list is

non exhaustive and will probably include additional features when interpreted by the courts in

the future. Although the inclusion of such a definition is innovative and necessary, the
enforceability is questionable especially when considering the fact that many poor tenants still

reside in dilapidated buildings. The tenant and the landlord must both, before the tenant occupies

the buildings, inspect the dwelling to determine the existence of any defects or damage so that

the Landlord’s responsibility for rectifying defects or damages can be determined.

In terms of common law, there is recognized exception to the lessor’s liability, which is that if

the lessee knows of the defect and is still willing to occupy the property on the understanding

that, he and not the lessor will bear the risk, then he has no claim against the lessor for any loss

that may result from the defect. However, the lessor is still liable if both parties are aware of the

defect and the lessee, although he takes occupation, expects the Lessor to remedy it and it is the

lessor’s duty to do so.

In addition to the duty to deliver property in a habitable condition, an additional duty is placed on

the landlord to maintain the property in a habitable condition through out the duration of the

lease. Maintanance includes the repairs and upkeep that is required to guarantee a dwelling is a

habitable condition. All property needs regular maintenance in order to avoid deterioration.

Unless the parties agree otherwise, the lessor has an obligation to maintain the leased property in

a condition reasonably fit for the purpose for which they were let. In other words, he has an

obligation to maintain all the essential parts of the premises which become defective during the

currency of the lease.

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.

Landlord’s remedies in case of breach by the tenant

It is critical to note that the law does not prohibit evictions from rented residential properties if

conditions for eviction are met. Where a lessee is not paying rent, a lease agreement becomes

void as only the lessee benefits from the agreement while the lessor suffers prejudice in that

he/she may have to maintain the property using his/her own money. Zimbabwean laws are,

however, against arbitrary evictions, whereby an eviction is done without obtaining a court order

to that effect. Where parties to a lease agreement are not in agreement in respect of any pertinent

issue, for instance the rent amount or whether a rent increase is justified or not, either party can

approach the Rent Board in their area. The board will adjudicate on the disputes in a simple

manner and give a directive.

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. The writer says “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.

In terms of the Rent Regulations, 2007 (SI 32/2007) the following are the recognised grounds to

evict a lessee. Failure to pay rentals, The lessee is or has materially damaging the property, The

lessee has caused material/substantial inconvenience to the neighbours or the lessor. The lessor

will be using the property for his own purpose for more than 6 months. Where the lessor will be

rebuilding the property making it unfit for human habitation during that period. Where a lease

has been lawfully terminated and the lessee is refusing to vacate. A lessor cannot remove a

tenant’s belongings from a property, lock a lessee out or disconnect critical services such as

water and electricity even if he is owed rentals.

The law directs that where a lessee fails to pay rentals, a lessor must demand payment of the

arrear rentals within a specific period of time and should the lessee fail to pay, the lessor can

terminate the lease agreement and sue the tenant for eviction, arrear rentals as well as holding

over damages.

The tenant’s obligations

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 neighbors. 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.

Remedies

If there is a major breach by the landlord, the tenant would be allowed to cancel the lease. The

tenant can only cancel the lease if the defect that occurred during the course of the lease renders

the property unusable for the purpose of which it was let. If the property is defective to the extent

that no reasonable man can be expected to live there, then the tenant can vacate the property and

cancel the lease.

Any unjustified delay by the landlord to make the repairs which leads to losses suffered by the

tenant can be recovered through a separate action for damages. If the tenant fails to request that

the landlord make the necessary repairs himself, the landlord would then not be required to repay

the tenant, therefore, the landlord must first be notified of the disrepair and given a reasonable

time to make the necessary repairs before the tenant can do it himself. However, if the tenant

requests the repairs and the landlord fails to fix them, the tenant will then be able to either sue for

specific performance or make the repairs himself, in which case, he can either deduct the costs of

the repairs from the rent due or claim the costs from the landlord.
The tenant can also choose to accept the inferior property and continue with the lease, in which

case, he can claim that, the rent be reduced in proportion to his deprived use. The deprivation

must be more than a trivial inconvenience. A Tenant should be able to claim a reduction in rent

if his use and enjoyment has been diminished, regardless of the fact that he decided to remain in

occupation.