Moffat Mungazi
Trust Maanda
Legal Position
A LESSOR is entitled to lease a property that he or she does not have title to.
A lessee of the property has no right to question the tile of the lessee.
Ownership of a property is not a prerequisite for the validity of a lease agreement.
A lease agreement is not dependent on ownership.
A person other than the owner of the property can enter into a lease agreement with a tenant and a tenant cannot dispute the title of his or her landlord.
The landlord does not have to be the owner of the property that he or she is leasing out.
It is not an essential of a lease that the landlord be the owner of the property.
That is why a lessee can sometimes sublet the premises of a lessor.
In Chatprill Enterprises (Pvt) Ltd v Mahere HH 994/15 CHITAKUNYE J (as he then was) said: “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 subtenant paid rentals.”
He said this is because 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 perform his part of the contract and should pay him rent which he agreed to pay for the use and enjoyment of the premises.
It will be against good faith for a lessee to set up the case that the lessor had no right to let him the property, after he or she has taken occupation and enjoying what the parties contracted for.
If the lessee’s occupies property on the authority of the lessor and pays rent in accordance therewith, the lessee cannot challenge the title of the lessor when the lessor seeks the eviction of the lessee.
In Zuva Petroleum Limited v S Chirenje HH 166/16 MUNANGATI MANONGWA J affirmed that a party other than the owner can recover premises from a third party without having to prove ownership.
She said a lessee is not allowed to challenge the right or title of the lessor.
The lessor’s lack of title does not, in the absence of an express or implied provision on the point in the lease agreement, affect the validity of the lease.
The tenant, is not in position to dispute the title person from who he or she derives his or her right of occupation, the lessor.
All that the lessor is obliged to do once the parties have concluded the lease, is to give the lessee the use and enjoyment which he or she has promised to give.
Once the lessor fulfils this obligation the lessee is not entitled to question the lessor’s lack of title and is bound to perform his own obligations.
Any person can let to another something which belongs to a third party.
A lessee cannot raise the defence that he has discovered that the property leased belongs to another person, where, for instance, he or she, is during the currency of the lease, sued for the payment of the stipulated rent or for eviction.
The reasons for that position is set out in Clark v Nourse Mines Ltd 1910 TS 512 at 520-1 where SOLOMON J stated: “It seems to me that the rule [that a lessee cannot dispute the lessor’s title] may be based upon 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 the 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 thus 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.”
But where the lessor seeks the eviction of the lessee, or terminates his or her lease with the lessee, any sub-lessees who claim occupation through the lessee will vacate with the lessee.
The rights of a subtenant as against a landlord are coterminous with those of the lessee.
No greater rights may be acquired by a subtenant than those enjoyed by a lessee under the head lease.
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 +263772432646.
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