NewZimbabwe.com has invited Mr. Vengai Madzima, the Senior Partner at Madzima Chidyausiku Museta Legal Practitioners (MCM Legal), to discuss with us legal issues that affect Zimbabweans. The discussions are of a general nature and those seeking specific legal advice should contact their lawyer.
Reporter: Welcome back Mr. Madzima. This week we want to discuss what a landlord can do when a tenant fails to pay their rent. What is the first step?
VM: Thank you for having me.
You will agree with me that rent is an absolute requirement in any lease, whether the lease is residential or commercial and whether or not, the lease agreement is verbal or reduced to writing.
Long and short, the payment of the rent is the reason for the tenancy arrangement. When a tenant fails to pay all rentals due, it is a material breach of the agreement between the landlord and the tenant.
The landlord, as a first step, to put it in your words, is required to give written notice to the tenant clearly stipulating the period within which the outstanding rentals should be paid. Where there is a written lease agreement, such notice should align with the notice period provided by that lease for such breaches.
The notice should also provide the actions the landlord intends to take should the tenant fail to pay rent within the notice period. If the landlord intends to evict the tenant as one of the consequences for non-payment, then a look at the eviction processes within the lease agreement is required so that due process is followed.
I say this because our constitution guarantees freedom from arbitrary eviction, meaning that tenants are protected from the caprices or whims of landlords when it comes to eviction.
In any event, eviction on its own does not guarantee eventual payment of the outstanding rent; it just protects against possible future non-payments by that tenant.
Reporter: You are correct in that some tenants run away with outstanding rents once a landlord initiates eviction proceedings, leaving the landlord with an unsecured property plus the unpaid rental. How does a landlord recover the unpaid rental?
VM: Our law provides for a silent or unwritten claim by the landlord over the tenant’s movable property on the rented premises when the tenant fails to pay rent.
This claim is known as a landlord’s hypothec.
The claim is over the furniture or articles that the tenant would have brought into the property against the outstanding rent. A landlord’s hypothec happens automatically on non-payment and subsists as long as the tenant’s goods remain on the property.
A landlord just has to get a court order in time to lock the tenant’s movable property inside the building before the tenant moves out of the landlord’s property. Should the tenant move out with the property, the landlord’s hypothec becomes impossible to perform, and the landlord must pursue the rental in the same legal form as they would do other debts.
Reporter: Since you mention that the landlord’s hypothec is an automatic right when a tenant fails to pay rent, can a landlord just lock the property in the building and lock out the tenant until the outstanding rent amounts are paid or while waiting for a court order?
VM: That ultimately amounts to self-help.
The law frowns on people taking the law into their own hands; it does not matter if there is a lease agreement that expressly equips or guarantees the landlord’s right to a hypothec. Long and short, it is illegal for a landlord to exercise their rights to claim outstanding rentals by attaching the tenant’s property without a court order perfecting that right.
In such instances, I mean situations where the landlord just locks the doors, preventing the tenant from accessing his/her property; the tenant will have a right to an urgent spoliation order which will restore the property to the tenant.
Reporter: So in practical terms, what does a landlord have to do to ensure that a tenant cannot seek a spoliation order against him/her when they intend to exercise a hypothec over the tenant’s property?
VM: To prevent a tenant from winning or pursuing a spoliation claim, a landlord must follow judicial process to convert an inchoate hypothec into a real right of security. This means that a landlord can file summons with an automatic rent interdict, which stops the tenant by judicial order from removing their property from the rented property or an urgent application attaching the property before it is removed from the rented property.
Reporter: Does the landlord’s hypothec apply to businesses that go into liquidation?
VM: Since liquidation freezes pending court processes or attachments, the landlord does not need to rush to court to claim his rentals. The law steps in and recognizes that the landlord has a preferential claim to the things left in the building. The law, however, cuts off the preferential status to 3 months only for monthly leases. If the amount owed exceeded three months and, say, six months rentals were owed, the other balance of three months outstanding becomes an unsecured debt.
Reporter: Thank you, Mr. Madzima. We have run out of time.
VM: Thank you.
You can contact Vengai Madzima on vengai@mcmlegal.co.zw or at www.mcmlegal.co.zw
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