The ManicaPost
Trust Maanda
Post Correspondent
A CONTRACT between a landlord and a tenant is a lease.
A lease comes into effect when the landlord and the tenant have agreed on the formalities of their contract.
There must be an agreement to lease between the two people.
There must be a property available for lease and an agreement on rent to be paid for the property.
Common law imposes a number of duties on the parties.
For the landlord, these duties include giving possession of premises in a habitable condition, and not to interfere with use of the property by the tenant.
The landlord should avail to the tenant the property for use, occupation and enjoyment.
This duty is breached if at the time the tenant is entitled to take possession, a third party has a claim of title to the property and exercise of this title would deprive the tenant of the use by the tenant.
The landlord should give vacant possession to the tenant.
The landlord should not disturb the tenant’s enjoyment of the property.
He or she must not pitch up at the property unannounced and at odd hours, claiming to have come to inspect the condition of the property.
He or she must visit at reasonable times and on notice.
If he or she visits at unreasonable times, a tenant may seek an interdict against him or her.
The landlord should refrain from preventing the tenant from enjoying the occupation of the property.
The landlord must also maintain the property in good condition as agreed upon.
He or she should not let the property dilapidate in a way that interferes with the right of the tenant to enjoy the property.
The property must be fit for the purpose for which the parties would have entered into a lease.
Unless the parties specifically agree otherwise, the landlord is in breach of his or her lease if the conditions are unsuitable for intended use at the time the tenant is due to move in.
The landlord is held to an implied warranty that the property is habitable.
The landlord impliedly warrants the tenant against eviction by a third party with a better title.
This means that the enjoyment or use by the tenant must not be disturbed by a third party with a superior right to the property.
The tenant also has certain duties.
In addition to the duties of the tenant in the lease agreement, the common law imposes primarily three other obligations: to pay the rent agreed, to exercise the duty of proper use and care of the property and not to use the premises for purposes not permitted by the lease or the law.
The primary obligation of the tenant is to pay the rent and incidental costs and the charges at the agreed time and place.
Generally, the payment of rent for leased premises must be made within an agreed time frame.
Where the parties have fixed a time for performance, and the tenant does not perform accordingly, that tenant is in breach.
In this case, the landlord does not need to demand performance from the tenant. If the tenant has failed to perform his or her obligations by such a time, he or she is automatically in default.
The tenant should not damage the property.
He or she should not keep it in a state of disrepair.
Usually, a lease spells out the duties of the tenant on what aspects of repair of the property he or she is responsible for.
The lease may spell out what improvements to the property the tenant may effect.
At the time of termination of the lease, the tenant has an obligation to return the property in the same condition he or she would have found it.
Either party may cancel the lease if the other breaches his or her duties.
Not every breach entitles the injured party there to cancel the contract.
Unless otherwise agreed, it is only that breach that goes to the root of the contract that entitles an aggrieved party to cancel the lease agreement.
Where the landlord breaches, the tenant may terminate the lease, ending the obligation to continue paying rent.
In general, when the tenant breaches any of his or her duties, the landlord may terminate the lease, repossess the property or seek arrear rentals.
Where the landlord wants to repossess his or her property, he or she must apply for an eviction order.
He or she cannot just physically eject or lock the tenant out.
It is advisable to have a written lease, with all the duties and rights of the parties set out and the remedies available to an aggrieved party in the event of breach by the other party.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.
