Online Reporter
Trust Maanda
Legal Position
A LEASE agreement exists between a lessor who lets his or her property to a lessee who agrees to occupy it for a fee.
That agreement binds the two parties. The tenant must occupy the premises in accordance with the agreed terms.
The question always arises whether a lessee can let the premises to a third party, commonly known as a sublessee. The answer is yes and no.
An agreement may prohibit the lessee from subletting the property to a third party. Any such subletting will be regarded as a breach of an express term of an agreement.
This means the lessor can choose to exercise any of the rights he or she is entitled to in terms of the lease agreement.
Depending on what the agreement says, the lessor may terminate the lease and seek to evict the lessee and all other people who claim the right to occupation through him or her. If such is what the agreement says.
The lessor may give notice to the lessee to rectify the breach within a number of days.
This takes us to the question whether the lessee can sublet the premises if he or she is not the owner.
Ownership does not confer the right to lease.
A person who does not own can sublet a property to a third party.
You do not have to be the owner to sublet.
A sublease can be valid even where the sub-lessor has no authority to sublet or where he is not even the owner.
In Chatprill Enterprises (Pvt) Ltd v Mahere HH994/15 it was held:
The ownership or authority to sublet the premises by appellant was not a prerequisite for the validity of the sub lease as long as the sub-landlord provided vacuo possession and the sub-tenant paid rentals.
In Robinson v Grimm 1996 (2) ZLR73(S) KORSAH JA quoted with approval the words of Solomon J in Clark v Nourse Mines Ltd 1910 TS 512 at 520-521 wherein the judge opined that: “It seems to me that the rule (that a lessee cannot dispute a lessor’s title) may be based on one or other of two very simple grounds.
The first is, that the lessor, having performed his part of the contract, and having placed the lessee in undisturbed possession of the property, is entitled to claim that the lessee should also perform his part of the contract and should pay him rent which he agreed to pay for the use and enjoyment of the premises.
The second ground is that the lessee, having had the undisturbed enjoyment of the premises under the lease, and having had all for which he contracted, it would be against good faith for him to set up the case that the lessor had no right to let him the property.”
However, where the agreement between the lessor and lease prohibits subletting, that subletting is invalid by reason of the prohibition.
In Pedzisa v Chikonyora 1992 (2) ZLR 445 (S), the court said where a contract of lease contains prohibitions against subletting, either absolutely or without the lessor’s consent, a sub-lease entered into by the lessee, without title to do so, is valueless and confers no rights on the third party; for he can acquire no greater rights in the property than the lessee has.
If the third party enters into occupation of the leased property, the lessor is entitled to an ejectment order against him.
The purported sub-lease is invalid because of the failure of the parties to the agreement to obtain the necessary prior consent, but the sublessor can evict a sublessee.
If the sub-lessee is ignorant of the defect in the lessee’s title at the time he contracts, his remedy is to claim damages for the disturbance in the use and enjoyment of the property.
The sub-lessee cannot contend that the sublessor has no locus standi to seek his or her eviction is not sustainable.
A party other than the owner can recover premises from a third party without having to prove ownership.
This flows from the legal premise that a lessee is not allowed to challenge the right or title of the lessor.
Given that legal position, the sublessor is within its right as the lessor to evict the sublessee and the sublessee is stopped from resisting ejectment on the basis that the appellant did not have title to the premise. That the property is owned by a different person is neither significant nor important where the lessor is the recognised lessor.
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
