Moreover, these two pieces of legislation differ slightly in their content and applicability when it comes to enforce-ability of their provisions. And there are also slight similarities in their content and applicability at the same time.
For instance, when it comes to renting of residential rental properties, the Supreme Court in the case of Lily Drake v M.B.L Mahtani and Professional Services Limited (1985) ZR 236, held among other things that the TRUE PURPOSE of the Rent Act, Chapter 206 of the Laws of Zambia is to PROTECT tenants even where a landlord provides PROOF that his or her case comes within the provisions of this very particular piece of law, it is still incumbent upon a landlord to PROVE that the premises are reasonably so required by him or her to occupy or take possession thereof due to the fact that a tenant has defaulted either in terms of paying rental fees on time or in complying with the other terms and conditions of the tenancy agreement.
Whereas in the case of business premises let out to a tenant, the provisions and applicability are almost the same except that a landlord needs to STRICTLY COMPLY with the formalities and procedures regarding the giving of notice to quit the tenancy where a tenant defaults whether in terms of paying rental fees on time or in complying with the other terms and conditions of the tenancy agreement and that a landlord MUST state his or her grounds of opposition to the application of a new tenancy by the tenant to the court. Failure to STRICTLY follow these formalities and procedures by a landlord who goes further and locks out a tenant without providing the affected tenant an opportunity to respond to the notice will put the particular landlord at risk of paying damages to the tenant as well as the court granting a new tenancy to the tenant as was illustrated in the Supreme Court case of Mususu Kalenga Building Limited and Another v Richmans Money Lenders Enterprises Limited (1999) ZR 27.
For your convenience, the brief facts of the above quoted case were that....the landlord entered into a verbal tenancy agreement with the tenant in 1996 following which the tenant occupied an office building (business premises) owned by the landlord at a monthly rental fee of K120,000 per month and a further amount of K3,000 as security deposit. The landlord gave to the tenant a receipt dated 11th November, 1996, for rent and security fees for the months of November, 1996, December, 1996 and January, 1997. On 17th May, 1997, the landlord then locked the office building for non-payment of rental fees by the tenant and detained the tenant’s goods without following the laid down formalities and procedures of giving notice and without stating any grounds of opposition for application of a new tenancy by the tenant to the court as required by law. It was argued by Counsel (Lawyer) for the landlord that the tenant was merely a licensee and not a tenant. Whilst Counsel for the tenant argued that there was a verbal tenancy agreement and that therefore there was a valid tenancy agreement between the parties. The court held among other things that there was a valid relationship of landlord and tenant between the parties and not that of licensor and licensee and that the tenancy agreement between them was a valid one even though it was merely a verbal one. Moreover, the court went on and held that the tenant was in occupation for more or close to 7 months before the office building was locked. It was therefore incumbent upon the landlord to strictly comply with the provisions of the Act namely the Landlord and Tenant (Business Premises) Act particularly section 5 of Chapter 185 of the Laws of Zambia by giving the tenant a proper notice terminating the lease and if the notice to quit was not complied with by the tenant, then the landlord was supposed to commence proceedings in court for possession of the office building and recovery of mesne profits. The landlord did not do this. He acted at his own peril by locking the office building and detaining the tenant’s goods without following the laid down formalities and procedures as provided for in the law. The Supreme Court therefore found the landlord liable in damages and the appeal was dismissed with costs to be taxed in default of the agreement and ordered the landlord to release the tenant’s goods forthwith. The tenant was also granted a new tenancy by the court.
One important issue worth noting from the above quoted court case is the distinction between a tenant and a licensee (or in other words: the difference between a lease and a licence that is). Why? Because the provisions and applicability of the two distinct pieces of legislation do NOT APPLY to a licensee – that is to say, to someone who holds a license? The provisions ONLY apply to someone who is regarded as a tenant or leasee.
SO, WHAT'S THE DIFFERENCE BETWEEN THE TWO?
Well, the best and most effective and convincing way to answer such a question is in my opinion to refer to a previously decided court case where such an issue was considered. And the case in point where such an issue was ably elucidated was in the Zambian court case of Chilufya v City Council of Kitwe (1967) ZR 115 where the High Court (Mallon, AG.J), outlined the distinction between a lease (tenant) and a licence (licensee). His Lordship also pointed out the essential nature of a lease and licence. His Lordship summarized the distinction between a lease and a licence as follows:-
"(i) It is essential for the establishment of the relationship of landlord and tenant that there should be a demise, except where the relationship is created by statute;
(ii) A demise or lease is a grant of the right to the exclusive possession of land for a determinate term less than that which the grantor has himself in the land;
(iii) An exclusive right to do something on a property (as opposed to exclusive possession thereof) is merely a licence;
(iv) The effect of a licence is to give the licensee an authority to use the premises , without which he would be treated as a trespasser;
(v) A licence may be either gratuitous or for value. If the latter, the consideration may be given either once for all or by periodic payment."
Therefore, in other words, a lease provides a person (a tenant) two things that is to say, certainty of duration in terms of the period - to do something on another person’s land or property and exclusive possession of the said property where the owner of the property is excluded for the time being and the tenant enjoys total control of the property in exchange for money consideration. Whereas a licence (licensee) merely gives one a right to do something on another person’s land or property whether for money consideration or not whilst the owner still retains total control of the said land or property in question. A licensee does not enjoy exclusive possession of another’s land or property. It is therefore this very distinction which makes the provisions and applicability of the two pieces of legislation NOT to apply to a licensee or someone holding a licence.
Therefore, licensees are not covered and/or protected under the provisions of the said two pieces of law!
In conclusion, the true purpose of the Rent Act, Chapter 206 of the Laws of Zambia and the Landlord and Tenant (Business Premises) Act, Chapter 185 of the Laws of Zambia is to provide security of tenure for tenants occupying such premises so as to prevent landlords from evicting tenants arbitrarily or even blatantly locking out tenants from such premises with or without any justifiable reasons. Even where a landlord provides proof that his or her case comes within the provisions of the law, it is still incumbent upon such a landlord to prove that the premises are reasonably so required by him or her to occupy or take possession thereof due to the fact that the tenant has defaulted either in terms of paying rental fees on time or in complying with the other terms and conditions of the tenancy agreement. A landlord whether of residential rental properties or of business premises is not allowed by law to lock out a tenant for failure to pay rental fees on time. In both instances, landlords are mandated by law to follow laid down formalities and procedures when trying to obtain possession of their premises where a tenant defaults in paying rental fees as well as in situations where a tenant breaches the terms and conditions of the tenancy agreement. For business premises, adhering to the formalities and procedures of giving notice to quit the tenancy as well as reasons for opposing the application of a new tenancy by the tenant to the court is mandatory by the landlord. And where a landlord blatantly disregards adhering to the formalities and procedures provided for by law, then such a landlord acts at his own peril as the court may find such a landlord liable in damages and the tenant granted a new tenancy by the court as was the case in the quoted case of Mususu Kalenga Building Limited and Another v Richmans Money Lenders Enterprise!
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ABOUT THE AUTHOR - DAVID KAPALU
David Kapalu is a Real Estate Investment Consultant who happens to be a duly Registered Member of the Zambian Institute of Estate Agents, an Internet Marketing Specialist, Motivational Speaker, Public Speaker, Life Coach and Trainer. He is also a 2nd Year Bachelor’s Degree Law Student studying with the Zambian Open University. He is someone who understands his subject so well and knows how to reduce complex matters into simple to understand matters.
Therefore, Call/Sms him right now on +260 955 168754 and contract him for one on one real estate investment advice!
He also stands ready to be booked for speaking engagements as well as offer free and paid radio and television interviews with any individual or organization interested in him sharing his deep insight and understanding of real estate matters as well as offer legal advice pertaining to land rights and ownership in the Zambian market.