Month: April 2021

residential or commercial lease agreement

Eviction

Posted by nnlaw on April 1, 2021 with 8 Comments

Anyone who owns an immovable property be it a residential or commercial may enter into an agreement called a lease agreement. Any party on agreed obligations and terms for the use and occupation of that certain property for a specified period of time. A lease agreement then creates binding terms between the landlord and the tenant (lessor & leasee). When a tenant breaches any terms of the lease agreement more particularly payment of rentals, the landlord can institute a process called eviction of the tenant from the property. In terms of Section 74 of the Constitution of Zimbabwe 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. Hence no one can take the law into their own hands and evict a person who has possession of their property without a court order even if they own the given property. The law governs eviction processes and due process must be followed.

Eviction from residential property

When considering evicting a tenant from a residential property, the owner of the residential property has to take notice of the requirements of the law as provided for in Section 30 of the Rent Regulations S.I. 32/07 and the terms of Agreement of Lease, if any.

Where a tenant is in arrears with their rentals, the Landlord cannot arbitrarily evict such a tenant. The landlord can demand payment of the arrear rentals within a specified time frame failing which the Landlord can terminate the lease agreement. After terminating the lease agreement, the landlord can sue the tenant for eviction, payment of arrears rentals and holding over damages.

Where a landlord requires the property for their own use, the Landlord must give the tenant three months written notice to vacate the premises unless the Agreement of lease provides otherwise. The notice should be in writing for it to be valid. In the event that the tenant refuses to vacate the property and the Landlord institutes eviction proceedings the Landlord will have to produce evidence of the cancellation of the lease agreement.

Eviction from a commercial property

A commercial property is defined in terms of the Commercial Premises (Rent) Regulations SI 676 of 1983. Section 22 of the Commercial Premises (Rent) Regulations provides for the grounds upon which a tenant may be legally evicted. In order for a landlord to evict a commercial tenant the landlord has to prove that he or she reasonably requires the use of the leased premises for his or her own use. A commercial tenant can only be evicted by the court if there are good and sufficient grounds for an eviction order. It will not be enough for a landlord to simply evict the tenant because they want to use it for their own purposes. That would not constitute good and sufficient grounds. The court would want to know the precise use to which the landlord wants intended to put the premises. If that use is found to be illegal or frivolous or, having regard to the owner’s circumstances, unreasonable, the eviction of the ‘tenant will be refused. Our courts have held that the landlord need to do no more than assert his reasons in good faith and then to bring some small measure of evidence to demonstrate the genuineness of his assertion. Thereafter the onus will be upon the Tenant who resists ejectment to bring forward circumstances casting doubt on the genuineness of the lessor’s claim. In other words, the duty lies on the tenant to prove that the Landlord is lying about using the property for his/her own use but wants to put in another tenant instead.

Eviction by employer after termination of contact of employment

The action rei vindicatio is available to an employer who is an owner of a property occupied by a former employee. It is based on the principle that an owner cannot be deprived of his property against his will. The owner is entitled at law to recover the property in question from anyone in possession of it without his or her consent.

If at the time of employment, the employee or former employee was allowed to occupy a property owned by the employer the employer must show that the contract has ended. The claim can be defeated by an employee or former employee who proves that they have a right of retention or some contractual right to retain the property.

The fact that the employee is challenging the dismissal or termination of contract is immaterial because an owner is entitled to vindicate his or her property. The Supreme Court has confirmed a position long held by this court in respect of such matters as in the case of DHL International LOimited vs Madzikanda 2010(1) ZLR 201 (H). It is therefore within an employer’s right to seek the eviction of a former employee from the employer’s premises.

Eviction by a new owner when property is sold

The Roman Dutch Law concept of huur gaat voor koop governs this circumstance. This simply means that hire takes precedence over sale. The doctrine was defined in Genna-Wae Properties (Pty) Ltd vs MedioTromics (Natal) (Pty) 1994 (1) SA 106. In simpler terms this concept means that where the seller entered in a lease agreement prior to the sale the tenant is protected from eviction where the property is sold 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 abide by the terms of the lease agreement. It is a requirement that the tenant should abide by all the terms of the contact and continue to pay his rentals to the new owner failing to do so amounts to a breach. Where the tenant fails to pay rentals agreed to with the previous owner, he commits a breach and he 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. A tenant wishing to rely on the concept should show that he or she entered into the lease agreement with the previous owner before the sale. For a tenant to benefit from the lease, the lease should not have been fraudulently entered into or entered into in bad faith. He/she must also show that the new owner was aware of the lease agreement and bought the property with the knowledge of the lease agreement. Eviction from commercial premises

Statutory tenant

A statutory tenant is one whose continued occupation of the landlord’s premises after the expiry of the lease agreement, either by the effluxion of time, or on due notice of termination having been given, is by operation of the law, that law being the rent regulations. The courts have defined statutory tenancy as the legal relationship borne out of a lease that has expired either by the effluxion of time or in consequence of notice duly given by the lessor in which the lessee however continues to pay the rent due, within seven days of due date, and performs the other conditions of the lease

For a statutory tenant to be recognized as such, he or she must satisfy the requirements of section 23 which provides that,

“A lessee who, by virtue of section 22, retains possession of any commercial premises shall, so long as he retains possession, observe and be entitled to the benefit of all the terms and conditions of the original contract of lease, so far as the same are consistent with the provisions of these regulations, and shall be entitled to give up possession of the premises only on giving such notice as would have been required under the contract of lease or, if no notice would have been so required, on giving reasonable notice: Provided that, notwithstanding anything contained in the contract of lease, a lessor who obtains an order for recovery of possession of the premises or for the ejectment of a lessee retaining possession as aforesaid shall not be required to give any notice to vacate to the lessee.”

What this means is that, the statutory tenant must continue to pay the rent due within seven days of the due date, and perform all the other conditions of the expired lease. The tenant tacitly continues with the old lease without expressing that in writing. However, the tenant can still be evicted if the landlord proves to the court that he has “good and sufficient grounds” for wanting back the premises as per Section 22 of the regulations

Good and sufficient grounds Eviction from commercial premises

For a landlord to legally evict a statutory tenant, there must be good and sufficient grounds for doing so. In determining what constitutes good and sufficient grounds, the courts have to balance the interests of both parties. After the tenant has given the grounds for ejectment, the onus is on the tenant to cast doubt on the grounds provided by the landlord. For example: If A (landlord) asserts that he wants to eject B (tenant) so as to sell the premises to someone who wishes to use the premises, the onus is upon B to dispute the reason given by A. However, each case is decided on its own merits.

There is also need for the landlord to back his assertions with a ‘small measure’ of evidence to support the genuineness of the assertion. It is after this that the tenant will have the onus to prove that the landlord is lying and that either he wants to use the premises for his own use or the tenant has refused an increase on rent. The landlord cannot eject a tenant merely because he or she has refused rent increment or that the he or she wants to lease the property to another person. These are admissible and strong reasons which a tenant facing eviction can use against the landlord.

Breach of contract that leads to Eviction from commercial premises

A landlord and a tenant are bound by the terms of their contract. If a fixed period is agreed, earlier termination will not be possible unless there has been a breach by the tenant. If the tenant breaches any provision of the lease agreement, the landlord may also use that as a ground for eviction. If a landlord wants to evict a tenant using breach of contract as a ground, he or she must do so immediately after the tenant has breached the provisions of the contract. 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. Eviction from commercial premises

Due process must be followed during eviction so as to avoid injustice on the part of the tenant. If the eviction is pursuant to a breach of contract, the landlord must first cancel the lease agreement and give the tenant notice to vacate the premises. The notice must conform to the instrument under which it is issued.

Death Notice

Posted by nnlaw on April 1, 2021 with 0 Comment

Death is unavoidable and unpredictable as it can happen anytime, anyhow without preparation. However, when death comes there are certain processes and procedures that are required to be done in terms of the law when a relative or loved one passes away. The Administration of Estates Act [Chapter 6:01] regulates deceased estates amongst other issues. The focus of this article shall be on a death notice and its importance.

Who may obtain a death notice of the deceased?

In terms of Section 5 of the Administration of Estates Act whenever a person dies leaving any property in possession, reversion or leaving a will, the nearest relative or the connection of the deceased who is at or in default of any such near relative or connection or person who at or immediately after the death has the chief charge of the house in or of the place on which the death occurs shall within fourteen days thereafter cause a notice of death to be issued. In simpler terms the surviving spouse, children or any other close relatives may obtain a death notice on behalf of the deceased. The Act also provides for a situation whereby the dececessed does not have relatives, in such a situation although very rare, the death notice can be obtained by the owner of the house or place where the death would have occurred. The relative or responsible person will sign the death notice forms.

After how long should it be obtained?

The law requires the death notice to be issued after fourteen (14) days the death would have occurred and the same applies for the registration of the deceased’s estate.

Where is it obtained and transmitted?

If the death occurs in Harare or the district thereof the death notice shall be delivered and transmitted to the Master or Assistant Master of the High Court. If the death occurs in Bulawayo or any district thereof the death notice shall be delivered and transmitted to the Assistant Master. If it occurs in any other district it shall be transmitted to the Magistrate for that district. If the death notice is delivered or transmitted to the Master or Assistant, it shall be accompanied by a duplicate or fair and true copy and if delivered to the Magistrate it shall be accompanied by two duplicate or fair and true copies.

If the death notice is registered at the Magistrates Court the Magistrate will examine and compare the duplicate to the original to ascertain if there is need for corrections. If satisfied the Magistrate will authenticate the duplicate or copy with his or her signature. The Magistrate will file and register the death notice and transmit the original copy to the Master if the death occurred in Harare and to the Assistant Master if it occurred in Bulawayo.

In terms of the Act failure to comply with the requirements of obtaining a death notice is a punishable offence which attracts a fine and imprisonment not exceeding a month. The Act also requires the responsible person to furnish true and correct information on the death notice and the person who signs the death notice must have been present when the deceased passed away. Section 6 allows the Master to request any further information from the executor of the estates after appointment, in the event that the information recorded in the death notice is defective or insufficient. Failure by the executor to furnish such information upon request by the Master attracts a punishable offence.

Importance of a death notice

A death notice is an important document in administration of deceased process. This is the first step required in registering an estate. The document is also required amongst other documents for the appointed executor of the estate to be issued with Letters of Administration legally authorising the executor to administer the estate. A death notice is also required by the Registrar General’s office when obtaining a death certificate for the deceased.

This article contains information which is for general information purposes only, legal advice must be sought in any aspect of the law.

Child Maintenance

Posted by nnlaw on April 1, 2021 with 1 Comment

Maintenance is the legal obligation that a responsible person is supposed to pay towards the welfare and upkeep of their dependants. A maintenance order can be made in respect of a parent and child, guardian and adopted child, a spouse when legally married, beneficiary of deceased estate, child and parent who can no longer take care of their selves or any other person whom the court may order to pay maintanace. This article shall however focus on parent and child mainatance. It is a fundamental right of every child to have parental care and provision of basic needs for their welfare and upkeep as provided for in the Constitution as well as international instruments like The Convection on the Rights of Children.

Maintenance is governed by the Maintenance Act [Chapter 5:9]. Maintenance is an obligation for both parents but in most cases men have been found guilty of neglecting their children. Maintenance in the legal sense is measured in monetary terms. It is therefore a reasonable amount of money sufficient for the upkeep of a child. This amount of money is determined by the circumstances of each case and there is no standard sum to be paid as maintenance. Maintenance is in most cases paid for children under the age of eighteen but a parent can still be ordered to continue paying for example when the child is now at university and requires fees.

When should maintenance be paid

Upon birth of a child both parents have an obligation to maintain their child. By operation of law and public policy, it is presumed that a reasonable parent will provide for and take care of their child. However, when one party is neglecting or refusing to maintain the child the other party can apply for a maintenance order. Maintenance is the sum payable in terms of a maintenance award by a Maintenance Court after an application. Maintenance is therefore payable after the Maintenance court, which is primarily the Magistrates Court has made an award of maintenance. Maintenance is payable for future expenses to be incurred. A maintenance claim can therefore not be made claiming amounts of money that date back for instance from the period between the child’s birth and when the complaint is made. In essence a maintenance award is for future expenses contemplated from the date of the award if the claim is granted by the court. A claim for arrears is only made in respect of unpaid amounts on an existing maintenance order as explained in the case of Chifamba vs Chifamba HH-28-15.

Procedure when making a maintenance claim

As highlighted above maintenance is paid only when there is a complaint that is made to the maintenance officer (clerk of Court at the Magistrates Court) that a responsible person is failing to provide reasonable maintenance to their dependant and the order is granted by a Magistrate. The complainant can approach the Magistrates court to make a complaint but it is advisable to engage the services of a legal practitioner who makes the complaint on their behalf. The complaint is made to a Magistrates Court in the area in which either the neglecting party resides or the court in which the complainant resides. That is called the court of jurisdiction. Maintenance complaint forms which doubles up as a summons calling upon the specified responsible person i. e father of child to attend a maintenance enquiry are filled and served. The complainant must indicate their bank account on the form or any other modes of payment to be used.

The Maintenance Officer provides a date on the face of the summons that the parties will attend the maintenance enquiry. This date must accommodate at least seven working days notice to the person receiving the summons. On the hearing date, the maintenance enquiry is conducted by a Magistrate who poses various questions to the parties and after being satisfied the court will grant the maintenance order.

Factors considered by the court when making a maintenance order

Factors considered by the court when making a maintenance order are provided for in terms of Section 6 (4) of the Maintenance Act and include the following:

The mode of life that the parties had been living.
The social status of the parties
The earning capacity per month of the Responsible Person
The special needs of the child or dependant i.e if there is a medical condition which requires regular medication then that extra expense may be factored in.
Whether or not the Responsible person has remarried and has another family. This tends to act to reduce the amount of maintenance payable but it does not absolve of liability. But if a spouse remarries, they cease to be entitled to be maintained by the former spouse.

A maintenance order may be varied whether upwards or downwards depending with the change of circumstances in each case. The variation can be done at the court where the order was initially granted or any other court provided arrangements for the transfer of the court records are made.

Enforcement of a maintenance order

A lot of women have had babies dumped in their hands and they have had to suffer alone at the expense of irresponsible men. They may become so timid to the extent that they believe even if they get a maintenance order, they will avoid paying. However, the law has put in place enforcement mechanisms for one to get the relief stipulated in the order. These mechanisms include:

Garnishee orders (having the employer of the person against whom award is made directly deduct the whole or a portion of the award from the salary of the person concerned).
Payments can be made through the clerk of court to avoid confrontations.
Direct payments into the Complainant’s bank account. This method is easy for the purpose of proving that monies were indeed being paid through the bank statement.

What if the responsible person is out of the country?

A number of questions arise as to whether a maintenance award can be obtained against a person who is outside the Country. It is common that a responsible person may leave their family and children or abandon them whilst they are in the diaspora. The law has made certain provisions to regulate such situations.

Section 4 of the Maintenance Orders (Facilities for enforcement) Act allows for an application to be made seeking a maintenance order against any person who is outside Zimbabwe but in a reciprocating country. A reciprocating country is defined as any country within the territory of the common wealth including England and Ireland. Notably, All countries in Southern Africa are in the common wealth.
The Application can be made in the absence of the responsible person in terms of section 5(1) of the Act and the Applicant has to prove that the person is in a reciprocating country and the justice of the case deserves the order for maintenance.
A court can only make a provisional order only when an application is made in terms of this section. The Order will however be of no force until it is confirmed by the reciprocating country. The order is transmitted to a court of the reciprocating country through the ministry of Justice.

What happens when the responsible person fails to pay as ordered?

In determining the fate of maintenance defaulters, our courts take an approach that promote the best interests of the child. The courts’ approached was reiterated in the case of S v Chagomoka HH-584-15 where Justice Matanda-Moyo made the following useful remarks on how maintenance defaulters must be treated

“It has never been the intention of the legislature to have defaulters of maintenance serve effective prison terms until the defaulter becomes a habitual offender. Such sentences should only be imposed on very serious wilful defaults. Once a person serves an effective prison term, his or her job is most likely to be lost. Once the job is lost, it means the children would not be looked after. The provisions of the Maintenance Act [Chapter 5:09] ought to be used to ensure that the rights and best interests of children, as enshrined in s 81 of the Constitution are upheld, by holding parents to their duty to maintain their children. The judiciary must endeavour to secure for vulnerable children and disempowered women their small but life-sustaining legal entitlements. It is a function of the State not only to provide a good legal framework, but to put in place systems that will enable these frameworks to operate effectively. Our maintenance courts and the laws that they implement are important mechanisms to give effect to the rights of children protected by the Constitution. Failure to ensure their effective operation amounts to a failure to protect children against those who take advantage of the weakness of the system.

Magistrates must strive to use other sentencing options that ensure the best interests of the children are catered for. Criminalisation of failure to pay maintenance was a way of ensuring that parents take the issue of maintenance seriously. However, magistrates must familiarise themselves with alternative sentencing principles, that ensure the interests of the children are not compromised. A prison term should be reserved for serious defaulters. Magistrates should make use of payment of fines, periodical imprisonment, writs of execution and suspended sentence.”.

Therefore, the rational for the criminal sanction is not punishment for the disobedience for punishment’s sake, but rather to coerce the defaulter to comply with the order in future. Understandingly, it is a remedy of last resort, only to be employed when all endeavours to bring the situation under control have failed, or are almost certain to fail.

This article is for general information purposes only, legal advice must be sought in all areas of the law.