Well, currently and legally speaking, it is illegal or unlawful to charge security deposits including demanding rental fees in excess of two (2) months when it comes to residential rental property. The current practice is that most landlords are in the habit of charging and requiring security deposits to be paid to them but the real cold and hard truth is that the current law which is The Rent Act, Chapter 206 of the Laws of the Republic of Zambia currently prohibits charging and/or accepting any premiums such as security deposits and that if found wanting, a landlord risks being fined four thousand penalty units or being imprisoned for a period of not more than twelve (12) months or to both a fine and imprisonment if found guilty by a court of law.
Moreover, the law also requires the said landlord to pay back the said monies in question to the tenant. Where a landlord fails to pay back this money, a tenant is totally free to go to court and seek the court's intervention in this matter so as to enforce the same and get his or her money back. The relevant law in point is section 10 and 15 of the Rent Act which provides as follows and has been reproduced here verbatim. Read below:
Section 10, "Where, after the commencement of this Act, the landlord of any premises, or any agent, clerk or other person employed by him, demands or accepts any rent in respect of such premises which exceeds the standard rent thereof by more than any amount permitted under this Act, or demands or accepts an advance of rent exceeding two months' standard rent, then, without prejudice to any other remedy under this Act, such landlord, agent, clerk or other person shall be guilty of an offence and liable to a fine not exceeding four thousand penalty units or to imprisonment for a term not exceeding twelve months, or to both; and the court by which he is convicted may order that any rent or advance so accepted, in so far as it exceeds the amount permitted under this Act, shall be repaid by the landlord to the tenant"
Section 15 subsection (1) provides, "No person shall, as a condition of the grant, assignment, renewal or continuance of a tenancy, lease, sublease, subletting or occupation of any premises, require the payment of or take any fine or premium or other like sum, or any pecuniary consideration, in addition to the standard rent; and where any such payment or consideration has been made or given in respect of any premises under an agreement made after the prescribed date, the amount or value thereof shall be recoverable by the person who made such payment or gave such consideration"
Subsection (2) of Section 15 further States, "Any person who requires or takes any payment or consideration in contravention of this section shall be guilty of an offence and liable on conviction to a fine not exceeding four thousand penalty units or to imprisonment for a term not exceeding twelve months, or to both"
And subsection (3) provides thus, "This section shall not apply to the grant, assignment, renewal or continuance of a tenancy for a term exceeding twenty-one years".
So, from the above quotation, it is quite graphic that the payment of any premiums such as security deposits and/or advance rental fees payments of more than two (2) months to a landlord is unlawful. And that should you find yourself in such a situation, then you are totally free to institute legal proceedings against a landlord who contravenes the provisions of the Rent Act as it stands today.
However, I should mention here that the Zambian Rent Act in its current form is quite archaic and does not reflect a true position regarding what is happening in real life and actual practice. It needs review in order to align it with current trends obtaining in society.
But be that as it may, it is still a legally binding and enforceable law affecting you and me whether good or bad. It still stands as law regulating residential rental property until it has been reviewed and updated to suit the current happenings in society.
This position regarding the current state of the Rent Act and how archaic it is in terms of applicability in today's modern Zambian society was highlighted in the case of Nip Limited v. Zambia State Insurance Corporation Limited (1993-1994) ZR 144 at page 149 where the Supreme Court stated the following:
".......the present provisions for increasing the standard rent completely ignore the present rate of inflation and legislators may need to consider alterations in the law (Rent Act).....".
Therefore, in conclusion, an evaluation of the impact of the Zambian Rent Act has shown that it has not been effective in its applicability when it comes to real life scenarios. It has been said to be toothless!
According to Mulimbwa (1998:98), an attempt was made in the early seventies to appoint rent controllers in accordance with the provisions of the current Zambian Rent Act to implement rent controls, but the exercise failed. The sheer enormity of the Court's task, in the absence of rent controllers, made it impossible for the Courts to exercise supervision in such matters.
Maybe the main reason for the ineffectiveness of the Zambian Rent Act as well as its effectiveness lies in jurisprudence where one Jurist by the name of Eugene Erhlich once remarked that:
"formal law should always be in conformity with the 'living law', that is to say, the norms of conduct found in society and that you can not find living law by reading statutes but by observing how far the formal law is being followed, modified, ignored and/or supplemented"
Therefore, the task of formal law makers is to keep the law as nearly abreast to the living law as possible as was recommended in the Supreme Court case of Nip Limited v. Zambia State Insurance Corporation Limited quoted above.
Maybe this is the very reason why the current Lands Minister Honorable Jean Kapata and the PF Government have embarked on land law reforms through the "Draft National Land Policy " particularly Chapter 7.5.2 of the said draft national land policy in order to harmonize the Zambian Rent Act and other relevant pieces of legislation relating to land so that they are put in tandem with the current and changing needs of the Zambian Populace!
However, when it comes to business premises for rent, charging of security deposits is permissible by law. The relevant law on business premises for rent is silent on this very issue and therefore by implication this is permissible!
NOTE: Look-out for our next detailed and in-depth Blog Article titled "Are Landlords Allowed To Lock a Tenant Out for Failing to Pay Rent on Time... and During This Period When a Landlord has Barred the Tenant from Entry, Does He or She Charge Rent? (This Being for Business Premises)".
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