Category: Legal Resources

Lease Agreements

Posted by nnlaw on

LEASE AGREEMENT

This is an agreement between two parties (the “lessor” and “lessee”) that regulates their relationship in relation to the property that is being let out and highlights the obligations of both parties premised on the lessor allowing the lessee use and enjoy their property in exchange for a certain sum of money (rentals). Leases relate to the occupation of property (immovable) and can be for either residential or commercial premises. For commercial lease agreements that extend for a period of more than 10 years there is a requirement that they be registered in accordance with the provisions of the Deeds Registries Act.

A lease agreement can be in writing or verbal, although you it is advisable to have a lease agreement that is in writing. It is difficult to prove the obligations of the parties basing on a verbal lease agreement, a written contract makes it easier for both parties. The lease agreement must capture the following details:

  • Name, surname and identity details of the lessor and lessee;
  • Property description (address, extent);
  • Rental sum;
  • Deposit / security
  • Duration of the lease agreement;
  • Amendment of the agreement;
  • Terms and conditions on cancellation and breach of the agreement be either party;
  • Duties and obligations of both parties;
  • Notice period;
  • Termination of the agreement;
  • Dispute resolution

FAILURE TO PAY RENTALS

Where a party is failing to pay rentals the lessor may exercise their right to terminate the agreement by virtue of breach of the material terms of the agreement. In the event that the lessee remains in occupation of the premises after the lapse of the notice period the Lessor is entitled to claim holding over damages, legal costs and any other costs depending on the agreement between the parties. Where the tenant won’t leave the premises after such termination the Lessor may approach the courts for relief (eviction of the tenant). Summons may be issued for the eviction of the lessee and all those claiming occupation through the lessee.

Get in touch with our team for comprehensive assistance with your leases.

This is for general information purposes only – consult an Attorney 

 

Claiming maintenance from a Deceased’s Estate

Posted by nnlaw on

DID YOU KNOW That a dependant/dependants of the deceased can make a claim for maintenance from the deceased’s estate?

The Deceased Persons Family Maintenance Act [Chapter 6:03] states that;

3 Application for maintenance
(1) Any dependant of a person who dies after the 19th January, 1979 may, subject to this Act, make application for an award from the net estate of the deceased.

Where one was a dependant of the deceased, during their lifetime, they can make an application to the Master for maintenance from the estate of the deceased.

In terms of the Act, a “dependent” can be:

(a) a surviving spouse;
(b) a divorced spouse who at the time of the deceased’s death was entitled to the payment of maintenance by the deceased in terms of an order of court;
(c) a minor child;
(d) a major child who is, by reason of some mental or physical disability, incapable of maintaining
himself and who was being maintained by the deceased at the time of his death;
(e) parent who was being maintained by the deceased at the time of his death;
(f) any other person who¾
(i) was being maintained by the deceased at the time of his death; or
(ii) was entitled to the payment of maintenance by the deceased at the time of his death;

 

There is a wide scope of application that is anticipated by the Act, and where one can successfully show that they were a dependent and financially reliant on the deceased, they are to present their case before the Master of the High Court. This claim should be laid appropriately in order for it to be entertained, and for one to be given their dues in respect of the estate.

This is for general information purposes only – seek the advice of a Lawyer 

 

FREEDOM OF TESTATION

Posted by nnlaw on

Inheritance laws have evolved drastically over the last few years. Testate succession refers to a situation where one passes away with a valid Will and their estate is wound up in terms of the Will, and intestate succession refers to a scenario where one passes on without a Will and intestate laws are then employed. The major problem with intestate succession is that at times the deceased’s desires are not fulfilled. Testate succession laws have developed over the years and currently ensure that the deceased party’s wishes are met where they have left behind a valid Will.

In a Will one can elect the Executor of their estate; appoint a guardian or custodian for their children, state where they want to be buried and distribute their property, according to their plans and wishes. Prior to the case of Chigwada v Chigwada SC 188/20 a spouse could not disinherit their husband or wife. This position was supported in case law and statute, particularly Section 5(3) of the Wills Act [Chapter 6:06] hereinafter referred to as “the Act”, which states that:

  1. Power to make dispositions by Will

 (3) No provision, disposition or direction made by a testator in his will shall operate so       as to vary or prejudice the rights of—
(a) Any person to whom the deceased was married to a share in the deceased’s estate or in the spouses’ joint estate in terms of any law governing the property rights of married persons; or

(b) Any person to receive any property, maintenance or benefit from the testator’s estate in terms of any law or any award or order of court; or

The old position that a Will could be deemed invalid and annulled because the surviving spouse was denied inheritance is no longer applicable. The Supreme Court in the year 2020 handed down a judgement that changed the stance in relation to marriage and property rights in Chigwada v Chigwada SC 188/20. Marriages in Zimbabwe are out of community of property, the Constitution of Zimbabwe Amendment (No. 20) 2013 hereinafter referred to as “the Constitution” in terms of Section 71(2) states that;

71 Property rights

 

(2) Subject to section 72, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others.

The Wills Act also provides that

  1. Power to make dispositions by will

(1)Subject to this Act and any other enactment, any person who has capacity in terms of section four to make a will may in his will—
(a) make provision for the transfer, disposal or disposition of the whole or any part of his estate; and

(b) Make provision for the custody or guardianship after his death of any of his minor children; and

(c) Make any other lawful provision, disposition or direction, whether in respect of his own or any other property or in respect of any other matter.

(2) Subject to this Act and any other enactment, a will shall not be invalid solely because the testator has disinherited or omitted to mention any parent, child, descendant or other relative or because he has not assigned any reason for such disinheritance or omission.

A married person may dispose of their property as they please by virtue of the property and inheritance laws of the country. The law respects freedom of testation and as such a spouse may choose to disinherit their wife or husband and the courts respect this lawful act, in respect of the property registered in their name.

The public is encouraged to put their affairs in order in anticipation of one’s death to ensure that their wishes are met. Further, spouses are advised to register property in both their names, and also conduct estate planning exercises together to avoid disgruntled surviving spouses after death.

 

This is for general information purposes – Seek advice from an Attorney