Zimba, a 37-year-old man of Lusaka is facing possible eviction by his landlord for playing loud music as early as 4 a.m. Infuriated by his daily habit, the Landlord Mr. Konde, is keen to forcibly evict Zimba from his pension-bought 2-bedroom flat that he decided to rent out for a monthly income of Three Thousand Kwacha. Zimba argues that the landlord has no right to evict him because he has the right to an exclusive possession of his home because he paid rent in full. Defeated by this response, Mr. Konde decides to increase the rent payable from Three thousand kwacha to Ten thousand kwacha per month without any notice or reason for doing so. Zimba goes to court to challenge the decision of Mr. Konde.
Who is right and wrong? A question worth asking. This is part of the many stories experienced in the townships all around Zambia today. The challenge of who has the bigger bargaining power between the landlord and tenant is a question worth exploring and above all, are Tenants and Landlords aware of their various obligations under the Legislations that provide for Tenancy contracts in Zambia.
The purpose of this article is to delve into the ongoing review of two significant pieces of legislation by first highlighting history content surrounding the enactment of the two Acts and the challenges identified in the two Act. The article concludes with the anticipated outcome of the review of these two Acts.
What is Rent?
Rent is a common terminology in the housing Industry. It generally relates to the payment to a property owner, a regular sum for the use of the property which may include Land and buildings to be used either for residential or business purposes. The payment of this sum is mainly characterized by rental contracts, made orally or in writing by the parties known as the Landlord (Owner of the Property) and the Tenant (Person renting the property).[1]
Introduction and Background
Legislation relating to the protection of tenants of both residential and commercial premises in Zambia may be traced back to 1968 when the Rent Control (Temporary Provisions) Act was enacted. As per its title, the Act was a temporary one pending the introduction of comprehensive rent control legislation. Under this sector of the economy, it was observed that there was high rent levels in urban areas as a result, there was an urgent need to prevent rents from rising and to provide security of tenure to tenants of premises to which rent control was to apply. The Act was only applying to the cities and other urban areas that had experienced the highest rate of development and where pressures for accommodation, both residential and business, are at their greatest.[2]
The Rent Control (Temporary Provisions) Act of 1968 was later replaced with the Rent Act Chapter 206 of the Laws of Zambia , and the Landlord (Business and Premises) Act Chapter 193 of the Laws of Zambia which were enacted in 1972 and 1971 respectively which are now the main pieces of legislation regulating the renting of residential and business premises.
The Rent Act Chapter 206 of the Laws of Zambia
The Rent Act was enacted by the Parliament of Zambia in 1972. The purpose of the Rent Act in general, is for the protection of tenants of dwelling houses. This protection is largely achieved under the Rent Act by limitation of rent payable and provision of a substantial measure of security of tenure. The limitation of rent payable is achieved under the Act through:-
(a) the application of the concept of standard rent
(b) the provisions of section 10 (demanding or accepting rent in excess of standard rent or advance of rent exceeding two months standard rent is criminalized)
(c) Section 11 instances when the landlord may increase rent are circumscribed under the section.
Section 4 of the Rent Act gives the court-wide supervisory powers which include determination of standard rent, fixing the date for payment of rent, and making orders for recovery of arrears. It has been observed that the vast powers invested in the court make the implementation of the Act difficult and not feasible for an already overloaded court.
Section 8 mandates a landlord to apply before the court for fixation of standard rent before letting the premises or within three months after letting the premises. Failure to apply to court makes the landlord liable to a fine or imprisonment.
Section 11 prohibits any increase of rent in excess of the standard rent except in circumstances prescribed in the said Act.
Section 13 further places restrictions on the right to possession and distress. A landlord cannot evict a defaulting tenant in terms of rent or effect distress without obtaining a court order, to the contrary, local authority or a National Housing Authority have the power to evict a defaulting tenant in terms of rent and to levy distress upon the goods in the premises for recovery of rent without a court order.
Landlord and Tenant (Business Premises) Act Chapter 193 of the Laws of Zambia
The Landlord and Tenant (Business premises) Act was enacted in 1971 to supersede the Rent Control (Temporary Provision) Act whose life was going to expire on 31st December 1971. The Act provides for the security of tenure for tenants occupying the property for business, professional, and certain other purposes and enables such tenants to obtain new tenancies in certain cases.
The Act requires a landlord to give a six months notice before termination of the lease agreement.[3] The termination notice has no effect unless it is given not less than 6 months and not more than 12 months before the date of termination specified therein.
Effectively, this means that even where the tenant has been defaulting on payment of rentals, if the landlord wants to terminate the lease, the landlord has to give that tenant another six months on the premises until such time as the notice period expires, thereby incurring more losses where the tenant continues to default during that notice period.
The notice has no effect unless it gives the tenant an opportunity, within two months after the giving of the notice, to notify the landlord in writing whether or not, at the date of termination, the tenant will be willing to give up possession of the property comprised in the tenancy.
The landlord must state the grounds (one specifically prescribed under the Act) on which the landlord will rely to oppose an application a tenant may make to the court for a new tenancy. Even where this is done, the courts have the discretion to grant the new tenancy where the landlord fails to adequately establish the grounds for opposing the tenancy to the satisfaction of the court.
In addition to the above challenges, stakeholders have submitted that since the enactment of the said Acts, no substantial amendments have been effected despite the significant changes in the economic, social, and legal environment that affect the rental market and the rights and obligations of landlords and tenants. Both Acts have been criticized by stakeholders for being outdated, ineffective and inconsistent with the current socio-economic realities currently prevailing in Zambia.[4]
It is against this background and in line with its mandate that the Zambia Law Development Commission is in the process of reviewing the Rent Act Chapter 206 of the Laws of Zambia and the Landlord and Tenant (Business and Premises) Act Chapter 193 of the Laws of Zambia in order to develop a comprehensive legal framework and address others matters of concern.
Conclusion
In conclusion, the review of the Rent Act and the Landlord and Tenant (Business Premises) Act is a necessary step towards addressing the existing challenges in the rental sector and achieving a more balanced and fair relationship between landlords and tenants. It is hoped that the review will lead to a more comprehensive and effective legal framework that protects the rights of both parties and responds to the modern dictates in the rector sector.
The Author, Mrs. Mwila Chikwanda-Jangazya is a Research Officer at the Zambia Law Development Commission
FOOT NOTES
[2] Friedrick. Mudenda; An introduction to Land Law in Zambia UNZA Press, for the School of Law of The University of Zambia 2007
[3] Section 5 of the Landlord and Tenant (Business Premises) Act
[4] ZLDC brainstorming meeting report held on 31/10/23
