The Sunday Mail
Legal Matters with Arthur Marara
There are two parties to a lease agreement — lessor and lessee. Last time, we talked about the duties of the lessor. Let us look at the duties of the lessee.
Three broad obligations arise on the part of a lessee. These are:
To pay rent;
To take proper care of the property and use it only for the purpose for which it was let; and
To restore the property on termination of the lease in the same good order and condition as it was when it was received
The lessee will be bound additionally by all those obligations expressly or impliedly in the contract. A common example is to maintain the leased premises, to put up fences, to renovate, to carry on a particular trade or to refrain from doing so.
The obligation to pay rent
The primary obligation of the lessee is to pay the rent and incidental costs and the charges incidental thereto at the proper time and place agreed in the agreement and at the time of termination of the lease.
The position is settled in terms of the law that a tenant has no right to occupy property save in return for payment of rent [Altem Enterprises (Pvt) Ltd T/A Ruwa Furnishers v John Sisk & Son (Pvt) Ltd SC 4/2013].
In most instances, there will be agreement on particulars of payment, for example, the parties agree that the rent must be paid on a fixed date, or that it must be paid “monthly, in advance”. There is need for clarity between the parties in relation to method of payment, time of payment and even place of payment. The majority of the problems arise from assumptions.
There is further need for clarity on the method of payment. In other words, is rent payable in money, and if so, which currency? Bear in mind the prevailing legal tender in Zimbabwe.
Ensure as well that there is agreement on the place where the rentals will be paid. Watermeyer CJ in Venter v Venter 1949 (1) SA 768 (A) noted that where the agreement does not stipulate a place for payment, the lessee should pay “at any convenient place where he may lawfully perform his contract”.
For example, the lessee could credit the lessor’s bank account, or he could visit the lessor at his home and pay him.
In the former example, the lessee runs the risk of the bank making a mistake, and technically, the bank’s mistake would count as a breach by the lessee.
A lessee should make all reasonable efforts to effect payment of rent by the due date. This date has to be provided for in terms of the agreement.
In Brown v Moosa 1917 WLD 22, the contract required the rent to be paid at a specified place and day.
The lessee called during the morning of the due date to find that there was no one present with authority to accept payment of the rent.
The court held that the lessee should have called again in the afternoon.
Where no date for payment (in full or periodically) has been agreed in the lease, the general rule is that the rent only becomes payable on the expiration of the lease, or in the case of a periodic lease, on the expiration of a particular period.
The reason for this rule is simple: the rent is due only after the lessor has performed; after the lessee has had his full use and enjoyment of the thing let.
Where payment must be made to a place of business, this implies that payment must be made during business hours and if the business is closed on the final day by which payment is due, then payment may be made on the next business day.
In National Bank of SA, Ltd v Leon Levson Studios Ltd 1913 AD 213, it was held that where payment may only be made at a place of business, “there is an implied intimation to the lessee that he is called upon to pay on a business day and during business hour”.
From this authority, it appears that if payment is to be made at a place of business (for example, a bank), this implies that payment must be made during office hours.
If the business is closed on the final date (for example, because it is a Sunday), then payment must be made on the first business day that follows.
Obligation to take proper care of the property
The lessee is obliged to take proper care of the property and to use it only for the purpose for which it was let. The lessee is required to make sure that he or she does not use the property let unreasonably or improperly.
This means the lessee must use the leased thing in a reasonable manner, that is, with that degree of care with which a bonus paterfamilias would use his or her own property.
This obligation can be divided into positive and negative duties. Positive duties may include the regular maintenance of a garden, keeping a farm free of weeds, cleaning gutters and drains of debris, and keeping buildings clean.
Negative duties would include the obligation not to misuse or damage the property. These duties may include driving nails into a wall and damaging the plaster and paintwork, and painting wood finishes.
A lessee is liable for anything done by the members of his or her household. In respect of guests, the common law used to exclude guests (unless the tenant was negligent in admitting them).
The lessee may also only use the property for the purpose for which it was let.
If there is no express or implied agreement on the purpose, the property may be used for the purpose for which it was previously used or for which it was manufactured or created.
To be continued . . .
LEGAL DISCLAIMER: The material contained in this article is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. It is not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expenses incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements. For legal advice, you should consult with an attorney concerning your specific situation.
Arthur Marara is a corporate law attorney. He has specialised in employment law matters, having worked with corporates, trade unions and individuals in their labour matters. He is also a notary public and conveyancer. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected].
