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AN ANALYSIS OF THE LANDLORD AND TENANT (BUSINESS PREMISES)

ACT CAP 193 LAWS OF ZAMBIA. A CASE


STUDY OF ZAMBIA

BY
MUCHIMBA MUMBA
LLB/32463/112/DF

A DISSERTATION SUBMITTED TO THE SCHOOL OF LAW IN PARTIAL FULFILMENT


OF THEREQUIREMENTFOR THE AWARD OF ABACHELOROF LAWS
DEGREE (LLB) OF KAMPALA INTERNATIONAL
UNIVERSITY

MARCH, 2015
DECLARATION

I, MUCHIMBA MUMBA hereby declare that I am the author of this directed research paper
entitled "An Analysis of the Landlord and Tenant (Business Premises) Act " and that it is a
creation of my own ingenuity, due acknowledgement has been given where other
scholars' works have been cited. I remain accountable for the shortcomings in this work and
truly believe this paper has not been previously presented for dissertation in this school for
academic work.

SIGNATURE DATE
MUCHIMBA MUMBA
DEDICATION

This paper is dedicated to Mr and Mrs Mumba who have given me the supp01i and
encouragement needed to get this far and achieve my dream of studying law and know how
proud they are of me. I will always treasure them.

ii
AKNOWLEDGEMENT

First and foremost I would like to thank the Almighty for seeing me through the years I have
been at KAMPALA INTERNATIONAL UNIVERSITY. The Lord has been good to me.

Special thanks go to Mrs M. Nyacheio for supervising this paper. Your supervision and
contributions have improved the contents of this paper and I take full responsibility of any of its
shortcomings. Thank you for being patient with me.

For my family who have been there for me always and don't think I can thank you more. To
Mum and Dad, I don't think anyone can ask for better parents thank you.

To all my classmates, Ngwambula Nundwe, Emmanuella Pita Pitiya, Nathan Magumba, Kiprono
Kiror, Kambale James, Emmanuella Najore, Ronald Ochana, Nakazzi Shumi, etc. Thank you
all, you made my stay in Law School worthwhile and I know I made yours too.

iii
APPROVAL

"I certify that I have supervised and read this study and that in my opinion, it conforms to
acceptance stand~ds of scholarly presentation and is fully, adequate in scope and quality as a
dissertation in partial fulfillment for the award of Degree of Bachelor of Laws of Kampala
International University."

..1-!Y:t /!.. ~ . t! . ....':1 ~ ...... .


N arne of Supervisor: Signature

DATE

iv
ABSTRACT

The legal system of any country has either a negative or positive impact, one area of investment
where the legal system can have impact is real estate. In Zambia a good legal system will strike a
balance between property owners or landlords on one hand and tenants on the other hand.

The purpose of this study is to critically analyze the applicability and effectiveness of the
Landlord and Tenant (Business Premises) Act. The general introduction through to the general
conclusions and recommendations, analyses the procedures and grounds for the termination of
business leases in Zambia, the procedure for collection of rent, the variety of tenancies.

After highlighting the procedures of the Act, some recommendations are rendered and these
include the need to amend the Landlord and Tenant (Business Premises) Act.

v
TABLE OF CONTENTS

DECLARATION.............................................................................................................................. i
DEDICATION ................................................................................................................................ ii
AKNOWLEDGEMENT ................................................................................................................ iii
APPROVAL .................................................................................................................................. iv
ABSTRACT .................................................................................................................................... v
TABLE OF CONTENTS .............................................................................................................. vi
LIST OF CASES ......................................................................................................................... viii
LIST OF STATUTES .................................................................................................................... ix

CHAPTER ONE ............................................................................................................................ 1


GENERAL INTRODUCTION ..................................................................................................... l
1.0 Introduction ................................................................................................................................ !
1.1 Statement of the Problem........................................................................................................... 2
1.2 Purpose of the Study ................................................................................................................. .3
1.3 Research Objectives ................................................................................................................... 3
1.4 Research Question ..................................................................................................................... 4
1.5 Research Methodology .............................................................................................................. 4
1.6 Significance of Study ................................................................................................................. 5
1. 7 Chapterisation ............................................................................................................................ 5

CHAPTER TW 0 ........................................................................................................................... 7
LITERATURE REVIEW ............................................................................................................. 7
2.0 Introduction ................................................................................................................................ 7
2.1 Historical Background ............................................................................................................... 8
2.2 The Nature of Landlord and Tenant Relationship ................................................................... 11
2.3 Varieties of Tenancies ............................................................................................................. 12
2.4 Types of Business Leases ........................................................................................................ 15
1.4 Leases Distinguished from other Agreements ........................................................................ .16
2.4 Intemationally .......................................................................................................................... 18

CHAPTER THREE ..................................................................................................................... 20


LEGAL AND INSTITTUTIONAL FRAMEWORK ............................................................... 20
3.0 Introduction .. :........................................................................................................................... 20
3.1 Pre- 1954 Legistlation .............................................................................................................. 20
3.2 The 1954 Landlord and Tenant Act... ...................................................................................... 21
3.3 Background to the Zambian Legistlation ............................................................................... .22
3.4 The Landlord and Tenant (Business Premises) Act ................................................................ 22
3.5 Security of Tenure ................................................................................................................... 25
3.6 Rights of Landlords ................................................................................................................ .30
3.6.0 Property as a Bundle of Rights ............................................................................................ .30
3.6.1 Right to Exclude ................................................................................................................... 31
3.6.2 Right to Possess and Use ..................................................................................................... .31
3.6.3 Right of Benefit ................................................................................................................... .31
3.7 Termination ofTenancies ........................................................................................................ 32

vi
CHAPTER FOUR .......................................................................................................................36
ANALYSIS OF THE LANDLORD AND TENANT (BUSINESS PREMISES ACT) .......... 36
4.0 Introduction............................................................................................................................. .36
4.1 Distress for Rent ..................................................................................................................... .37
4.2 Property Attachment ............................................................................................................... .38

CHAPTER FIVE ......................................................................................................................... 40


FINDINGS, EVALUATION AND RECOMMENDATIONS ...............................•.................40
5. 0 An Evaluation of the Act ........................................................................................................ .40
5.1 Recommendation ..................................................................................................................... 41

Bibliography .................................................................................................................................43

vii
LIST OF CASES

Hull.v. Wood,(l845)14 M & W.682


Finlay v. Bristol and Exeter Railway (1852) 7 Exch.409.
Millow .v. Law (1923) 1 K.B. 522
Cole .v. Kelly (1920) 2KB. 106; CA
Ridge .v. Bell (1973) 5 T. R. 471
Lewis .v. Beard (1811), East 210
Asher .v. Whitlock
Cobb .v. Lace (1952)1 ALL E.R 1199
Thomas .v. Sorrel (1673) Vawgh.330,351
Musket .v. Hill (1839), 5 Bing. N. C.694, 707
Webb .v. Patemoster (1619), Proph, 151
Musingah .v. Daka (1974)ZR.l (SC)
Cafeteria (Kieghley)Ltd .v. Harrison(1956) 168 E.G 688
Hill Patents) .v. University College Hospital Board ofGovernors(1956)1 QB.90
Minos Panel Beater Ltd .v. Chapasuka (1986) ZR. 1 (SC)
Apollo Refi:igiration Services Co Ltd .v. Fanners House Ltd (1985)ZR 182(SC)
Afro Butcheries Ltd .v. Eeves Limited. Appeal No.4 of 1987
Bolton Engineering .v. T. J Graham & Sons [1957] 1 W.L.R. 869
Honowitz .v. Ferrand [1956] 5 C.L.207
Bettys Cafes .v. Philips Fumishing Stores ;1957] Ch.67
Boltons (House Furnishers) .v. Oppenheim
Lyons .v. Commercial properties
Boltons (H.L) Engineering Co .v. JJ Graham & Sons
State .v. Shack

viii
LIST OF STATUTES

Statute of Frauds 1677 ( English)

Landlord and Tenant (Business Premises Act) Chapter 193 of the Laws of Zambia

Landlord and Tenant Act of 1927 (English)

Landlord and Tenant Act of 1954 (English)

The Rent Act 1968

Laws of Distress Amendment Act

ix
CHAPTER ONE

GENERAL INTRODUCTION

1.0 Introduction

Landlord and Tenant Laws regulate the relationship between one who owns real property(i.e ,
land, houses, buildings, etc) and those to whom he or she gives the right of use and possession.
Landlord tenant laws grew out of English Common law, and contains elements of both real
property law and. contracts, though most jurisdictions have added a number of more modem
considerations.

The relationship is created when the owner of a freehold estate (landlord) transfers a right to
exclusively and temporarily possesses the owners property to another9 tenant).

A commercial tenant is usually a business that takes up possession of the property for the
purposes of carrying on some form of commercial, retail or industrial pursuit. Commercial
tenancies, on the other hand, are granted more protection against activities that would hann a
business or impeded its operations, bur have fewer considerations for privacy and habitability.

The dissertation will look at the historical background of the landlord and tenant relationship and
will also cover the variety of tenancy, nature of leases and how they are terminated. This Act
regulates lease of business premises and in pru.iicular the relationship between landlord and
tenant and the public interference in the contractual relationship, how the Act is applied and how
a contract can be terminated.

The legal relationship between landlord and tenants has always been a complex issue. This
disse1iation analyzes landlord-tenant legal relationship in business premises in Zru.nbia. The
analysis will help in providing proposals for reforming the law in a marmer that take the interests
of all pru.iies involved into account as the Act is to provide security of tenure for tenants
occupying property for business or professional purposes..

1
Zambian legislation has its roots in the English legal system and legislation goveming landlord-
tenant relationships is no exception. In fact much of the Zambian legislated law is either
English legislation extended to Zambia or legislation mainly based on English Acts with a few
modifications to suit the Zambian environment. Landlord and tenant relationships as regards
business premises are regulated mainly by the Landlord and Tenant (Business Premises)
Act, as well as the common law principles on which legislation is based. It is apparent
that the Zambian Landlord and Tenant (Business Premises) Act has largely been based on

part two of the English Landlord and Tenant Act of 1954"

The Landlord and Tenant (Business Premises) Bill was read for the first time in the
national Assembly on November 23. 1971. It was read for the second time on
November 28 1971 by, the then Minister of State for Provincial and Local Govemment
and Culture, Mr. J. H. Monga. It was the minister's intention to introduce at the same
time a complimentary bill concemed with residential premises. The aim of introducing
two bills at once, one concemed with lettings of business premises only and the other
concemed with residential premises only, was that together the two bills would
supersede the Rent Control (Temporary Provisions) Act of 1968, which applied to
both commercial and residential premises. This Act only applied to the cities of Lusaka,
Kitwe and Ndola, and was meant to expire on 31St December, 9171 unless extended.
The 1968 Act was never intended to have a lasting but a temporary effect. This was also
made clear at the time the Bill was introduced in the National Assembly. The
minister sated that the 1968 Act was indeed a short-tenn measure, which would be
replaced as soon as the landlord and tenant legislation in a comprehensive fotm could
be introduced.

1.1 Statement of the Problem

The rights enjoyed by the landlords may depend on whether the objective of the Act is to protect
tenants from exploitation by the landlords or to favour the business sector. This further depends
on whether the objectives of the Act in determining whether the security of tenure is being
protected. The issue therefore is to question the applicability of the Act by scrutinizing their

2
efficacy in meeting their set objectives, the objection of the statute will determine whether the
Act governing the rights of landlords of business premises contribute to social or economic
objectives ..

In the study the right of benefit from the property entitles the owner to any profits generated
fi·om the use of property and the right to exclusion allows the property owner to exclude others
from entering the property. The right to property is guaranteed by the Constitution of Zambia as
they are the most important rights for security of any investor.

1.2 Purpose of the Study

The purpose of this research is to understand the prevailing relationships between the landlord
and tenant in Zambia. This study also seeks to understand and examine the various legislation
available that govern the landlord and tenant relationship, also seeks to understand the
responsibility of each party in this relationship, internationally, regionally and internally.

1.3 Research Objectives

The overall aim of the research is to compare and analyze the right and the benefits oflandlords
and tenants in business premises in Zambia, South Africa, America and The United Kingdom,
with a view to establish whether the legislation goveming these rights has achieved its
objectives.

The main objectives of the Act are found in the Ministers speech when introducing the
Bill as well as in the preamble of the Act. During the Second Reading of the Bill in the
National Assembly, the Minister set-out the objectives of the Act as follows, "Mr.
Speaker, Sir, the adoption of the principles I have mentioned means that the sum and the
substance of the Bill is the security of tenure for tenants who have built-up their
businesses, with the additional security from any risk of a landlord, either at the end of a
tenancy or at the. commencement of a first tenancy .

The aim of the research is to and analyze the right of the benefits and the right of exclusion of

3
the landlords of business premises in Zambia and to know whether the legislation governing the
rights has achieved its objectives. The specific objectives of the research are;

a) To analyzing the nature of relationships existing between landlords and tenants of


business premises in Zambia.

b) To analyze the types of business leases and rights oflandlords in Zambia

c) The grounds and procedures for termination of leases in Zambia.

d) To analyze the procedure for the collection of overdue rentals in Zambia.

e) And finally analyze whether the security of tenure is being protected as it's the Landlord
and Tenant( Business Premises) Act main objective.

1.4 Research Question

Some of the question the research seeks to answer are the objectives above and are shown as
follows;

a) How can the landlord and tenant (business premises ) Act be improve the level of
protection the Tenant?

b) What legal standards have been enacted to protect the landlord and tenant of business
premises both internationally and regionally?

c) What are the legal procedures of terminating leases in Business premises?

d) What is the procedure for collecting overdue rentals?

e) Whether the Act protects the security of tenure, as it is the Acts main objective?

1.5 Research Methodology

This study will only use secondary quantitative, these sources will include a review of literature
on the subject, published and unpublished work will be consulted. Case law and other pieces of

4
legislation will also be consulted. Secondary research also known as desk research involves the
summery, collection of existing research, the key performance in secondary research is the full
citation of original sources. These sources include prior research reports, journals. This is one
type of quantitative data.

1.6 Significance of Study

The scope of the application of the Act is such that while it applies to all tenancies in Zambia, it
does not apply to inter alia, agriculture holdings, residential properties, premises let be
govermnent or local authorities , premises in which a tenant can-ying on business in breach of a
prohabitation premises comprised in a tenancy granted by reason that the tenant was an order of
the office, appointment or employment from the grantor of the tenancy and tenancies not
exceeding 3 months.

The main purpose of this Act as stated in its preamble is to gtve security of tenure to
tenants of business premises. This is done by a number of provisions in the Act that
prevent a landlord from terminating a tenancy at will, provisions that prescribe ways and
means of terminating a subsisting tenancy and provisions giving courts power to order for
the grant of a new tenancy

The research is important for Zambia in view of the liberalized economy where economy growth
is driven by, inter alia, business activity. Before investors make a decision on where to invest
their resources they will critically look at the law regulating their intended investment. There is
need therefore to analyze the rights of benefit and exclusion of landlords in Zambia to find out
what good practices, if any in Zambia.

1.7 Chapterisation

This dissertation consists of five chapters. Chapter one provides a general introduction of
the study, the background, the statement of the problem, objectives, research questions,
significance of the study and the conclusion.
Chapter two will provide the historical background, the nature of the landlord and tenant
relationship, the variety of tenancies on an intemational , regional and local perspective.

Chapter three will focus on the legal and institutional framework of the Landlord and
Tenant (Business Premises) Act and its pre-legislation.

Chapter four will critically analyze the institutional framework of the Landlord and Tenant
(Business Premises) Act.

Chapter five will look at the results of the analysis and make an evaluation of the Act
render recommendations and finally give the overall conclusion.

6
CHAPTER TWO

LITERATURE REVIEW

2.0 Introduction

In the National Assembly. The minister sated that the 1968 Act was indeed a short-
term measure, which would be replaced as soon as the landlord and tenant legislation
in a comprehensive form could be introduced. The Landlord and Tenant (Business
Premises) Bill was read for the first time in the national Assembly on November 23.

1971. 49 It was read for the second time on November 28. 1971 by, the then
Minister of State for Provincial and Local Government and Culture, Mr. J. H. Monga.
It was the minister's intention to introduce at the same time a complimentary bill
concerned with residential premises only. The aim of introducing two bills at
once, one concerned with lettings of business premises only and the other concerned
with residential premises only, was that together the two bills would supersede the
Rent Control (Temporary Provisions) Act of 1968, which applied to both
commercial and residential premises. This Act only applied to the cities of Lusaka,
Kitwe and Ndola, and was meant to expire on 315t December, 9171 unless extended.
The 1968 Act was never intended to have a lasting but a temporary effect. This was also
made clear at the time the Bill was introduced

The groundwork for Patt II of the Landlord and Tenant Act of 1954 was laid by the
final report of the Committee under the Chairmanship of Lord Justice Jenkins in
June 1950. Among the terms of reference, the committee was to consider whether
business tenants should enjoy security of tenure and whether the rents of business
premises should be controlled.

The right to prope1ty is the only economic right granted in the cuiTent Zambian
Constitution. The Constitution provides sthat; Except as provided in this article ,property of
any description shall not be compulsorily taken possession of, an interest in pr right over
property of any description shall not be compulsorily acquired, unless by or under the
7
authority of an act of parliament which provides for payment of adequate compensation for
property or interest or right to be taken possession of or acquired.

Other than the Constitution which protects the right of ownership and subsequently the
right of benefits and exclusion which arise, another principle Act governing the relationship
between the landlord and tenant of the business premises is the Consumer Protection Act (
CPA), here and after refened to as the CPA according to section 3 (1), the purpose of the
Act are to promote and advance the social and economic welfare of consumers.

In the analysis of the Act the above legislations and cases that will be discussed later will
enable us understand whether the Act is carrying out its main objectives.

This paper endeavors to show the relationship between the Landlord and Tenant in Commercial
Business, it intends to analyze the types of tenancies, the business leases that are provided for,
the time that a lease can exist, the procedures to be followed in the collection of rentals and
overdue rentals and also how these business premises lease agreements can be terminated.

The research looks to come to a conclusion of whether the Landlord and Tenant (Business
Premises) Act plays an impmiant role in the securing of tenure and protecting the rights of both
tenants and landlords in a business agreement for leases.

2.1 Historical Background

In the English feudal economy prior to the thirteenth century, most landholding seems to have
been by estate in the fee or by the estate for life in some instances. Leases or terms of years were
not common, although not unknown 1• From towards the end of the twelfth century, leases for
terms of years became common though they did not form pati of either the feudal system which
was based on military, socage or villain tenures. During this period, leases were mainly used for
purposes of raising money and as devices to evade the medieval church's prohibition on usury. 2
For example, A being in need of some funds would make a lease for years to B for a lump sum
consideration paid in advance. B would expect to recover the consideration and make a profit

1
Pollock & Maitland, History of English Law val. II,2"d ed. (1923),pp 111-113
2
Barnes, M. and Dobry G.Hill and Redman's Law of Landlord and Tenant, 15th ed. p. 3

8
from the use of the land during the term. This had an advantage of devolving by will, unlike
estates of freehold before Statute of Wills in 1954.3

In their legal incident, terms of years differed from other interest in land. For whatever purposes
the lease was made, the lessee was first given scant protection by the law in the enjoyment of his
possession.4 They did not confer any freehold nor did they entitle the lessee to the ordinary
possessory remedies, which were only available to freeholders. The lessee could only recover
damages fi·om the lessor in covenant if he was ejected by the lessor, or on warranty if ejected by
a stranger. However, he was accorded protection against third parties in an action of trespass. In
the year 1235 the new action of' quare ejecit infra terminum' gave the lessee of a leasehold a
remedy to recover possession against any ejector who had purchased from his lessor. This was
however narrowly interpreted by the courts. 5 By the fifteenth century a variety of the writ of
trespass, 'de ejection firmie' gave a lessee a remedy in damages against all persons and in the
year 1499 it was finally decided that possession could be recovered in this action which became
to be known as the action of ejectment. 6 This action which was initially confined to leaseholders
became the universal form of action for recovering possession of land.

In denying to the lessess the benefit of real actions, it was said that he had possession but not
seisin which was scribed to the lessor. The development of an ejection into a possessory action
was due to economic causes. Not only were damages inadequate remedy for an ejectment from
the viewpoint of the lessee, the lack of a remedy for the recovery of the land itself tended to aid
landlords in converting arable land into pasture causing depopulation of the country, practice the
government had to end. 7 This was due to the rapid increase of the agricultural leases for years
causes by the decay of the labor service system.

After the ejectment became a possessory remedy, the lessee for years was in as good as a
position as the owner of any other estate in the land as regards ejections. In fact, his position can
be said to have been better. This is because his remedy was superior to the real actions and hence

3
ibid
4
Holdsworth, Historical Introduction to the Land Law (1927).pp 71-73
5
Supra note 4, at 19
6
Pollock & Maitland, supra note I, at I 09
7
Holdsworth, W. A History of English Law, vol.III,5"' ed( 1942), p.216

9
tenants of fi·eehold interests sought and achieved its benefits by means of fictitious leases. Yet
the lessee's interests continued to be labeled personal property, a chattel real. It is probable that
the reason for this lay not much in the fact ejectment began as a personal action as in the fact that
leases were frequently used for security purposes. 8 Real property interests could not be devolved
by will until the Statute of Wills was passed in 15409and not completely so until the abolition of
military tenure in 1660. 10 One who had invested money in a premium lease or taken a lease or
taken a lease by way of mortgage would very likely desire this power of testamentary disposition
and perhaps also that the intestacy property should descend by the rational mles of rules of
succession applicable to personality. 11

Apart from the matter of testamentary disposition and inheritance, the lease for years had other
advantages which at various times in its evolution made it popular as a method of conveying
interest in land. The certainty and almost infinite variety in duration of tetm caused it to supplant
leases for life. Until the Statute of Frauds, 12 leases could be created by parole or by writing
without formality and could be created to commence the future, as freeholds could not nnder
common law. The non freehold character of leases for years also resulted in their being used to
avoid the consequences of the Statute of Uses, which did no execute uses limited upon non
freeholds.

In the modern times, leasehold tenure is the only tenure of practical importance. 13 The lease has
been one means of filling the basic need of securing the use of land without the need of
purchasing it, which usually requires a lot of capital. A large percentage of land used in business
, housing accommodation and agriculture today is held in leasehold. 14 A lease is therefore
indispensable in the modern capitalist economy.

8
Lesser Hiram, Landlord and Tenant (1957), p. 176
9
Hen, VIII, C. I (1540)
10
12 Car. II, C.24(1636)
11
Supra note 8, p.l77
12
29 Car. II, C. 3(1676)
13
Supra note 2,p. 4
14
Supra note 8, p. 177-179

10
2.2 The Nature of Landlord and Tenant Relationship

The relationship of landlord and tenant maybe defined as a relationship that exists between two
parties to a lease. It usually arises when the owner of an estate grants, usually by means of
contract, the right to possession of his land or part of it , to another person to hold for a specific
period of time. Such a grant is called a lease, demise or tenancy. The grant is known as the
landlord or lessor and the guarantee is known as the tenant or lessee, the period granted is the
term or term ofyears. 15

The relationship is one if a tenure which means that it is for a period which is either subject to
definite limit or can be made subject to a definite by either party. As a rule, the landlord confers
on the tenant the right to exclusive possession for the period which is subjected to a definite time
limit, as in the case of a lease for a term of years or which is subject to a definite limit by either
party as in the case of any from year to year. 16

The landlord usually remains with an interest in the property called the reversion which entitles
him to receive periodic payments fi·om the tenant as consideration for the right to exclusive
possession, use and enjoyment of the land and tenements belong to the landlord. This
consideration is called rent and it is usually an essential element of the relationship of landlord
and tenant. However, a tenancy maybe created; known as a tenancy at will, by mere occupation17
or temporary possession of the land with the Landlord's consent and rent is not essential as in the
case of any letting if the lease is by deed.

In essence, a lease is a contract where the tenant is granted exclusive possession of the premises,
use of the prope1iy and enjoyment of tenements by the Landlord in consideration of the payment
of rent. The fact that a lease is a contract makes it subject to the law relating to contracts.
Originally, the lessee's rights were purely contractual but fi·om the sixteenth century inwards, his
interest has been as fully protected as that of the owner of any possessory interest in land. 18

15
Blundelll ,L.A and Wellings, V.G., Woodfalls Landlord and Tenant ,27'h ed.vol.I, p.l
16
Supra note 2
17
Walton,R.and Essayan, M.,(ed)Adkin's Landlord and Tenant, l6'h ed.p.32
18
Suora note l5,p.32
11
A lease operates to convey possessory and other interests in land from the lessor to the lessee.
Therefore, a lease is a contract as well as a conveyance by which the landlord transfers a portion
of his interest in land to a tenant for a period of years. A lease is never a conveyance of the entire
interest which a landlord possesses in the land as this would amotmt to a sale of land. A landlord
always retains a reversion to him which entitles him to receive rent to possession of land upon
19
expity of a lease. The fact a lease is a conveyance makes certain provisions of the Statute of
Frauds 167720 , Conveyance Act of 1911 the common law on conveyance applicable to leases.

2.3 Varieties of Tenancies

A. Tenancy for years

A tenancy for years is a tenancy for any period, the commencement and duration for
which are cetiain. Both the maximum duration and the date of commencement must
either be cetiain at the time the tenancy is created or capable of being rendered certain
before the tenancy takes effect. A tenancy for years arises by express contract although
the contract may sometimes be created as a result of a statute rather than the express
consent of the parties. For example, the court may the court may grant a new tenancy of a
business under section 10 of the Landlord and Tenant (Business Premises) Act. 21

The term may commence either immediately or from a future or even a past date.
Although a term may be expressed to commence from a past date, the actual interest and
liability of the tenant only commences on the actual execution of the deed. 22 It is
sufficient if the commencement of the date ascertained with certainty at the time when the lease
is to take effect. Therefore, term, maybe made to commence at the death of someone, the expiry
of a number of lives upon some occuiTence of a future event. 23 A term of a tenancy maybe for
any length of time but not exceeding perpetuity. This means that any term granted to take effect
more than twenty-one years from the date of the instrument purporting to create it, is void and

19
Suora note 17, p.32
20
Section 4
21
Chapter 193 of the Laws of Zambia
22
Supra note 3, p.54
23
Cloves .v. Hughes,(l870), L.R. 5;Exch.160

12
any contract made on or after such date to create such tern is likewise void. 24

B. Tenancy from year to year

A tenancy from year to year is periodic tenancy which continues for a year and thereafter
from year to year until determined by issuance of proper notice by either the landlord or
the tenant. If no such notice is given, the tenancy will continue from year to year until
either surrendered, extinguished by the Statute of Limitation or the landlord's title ceases.
The death of either party will not extinguish it. 25

A tenancy from year to year may be created by statute, by express agreement or by


implication of law. Where a person is let into possession under a mere agreement for a
26
future lease; he becomes a tenant at will. However, when such a tenant pays or agrees to
pay rent, there is· prima facie tenancy from year to year. 27 This presumption of a tenancy
can be rebutted by either party adducing evidence to prove contrary intention of the
parties. Payment of rent does not in itself create tenancy from year to year, but is only
evidence from which the fact may be found. 28

There is a further rebuttable presumption that when an implied tenancy from year to year arises
as a result of a person retained possession after the determination of a former tenancy, the terms
of the implied tenancy are the same as those of the former tenancy so far as consistent with a
29
yearly tenancy.

C. Periodic tenancy for less than a year

A periodic tenancy for less than a year may be a weekly tenancy, a monthly tenancy or a
tenancy for any other period chosen by the parties. Such a tenancy does not expire at the
end of the week, month or period as the case may be. It can only be determined by proper

24
Supra note 3,p.55
25
Hull.v. Wood,( 1845) 14M.& W. 682
26
Supra note 15, p.270
27
ibid
28
Finlay .v. Bristol and Exeter RY.(I852) 7 Exch.409
29
Supra note 3, p. 44

13
. to qmt
notwe . by e1t
'her party. 30

A periodic tenancy for less than a year arises by express agreement or by implication of the
law. A tenancy for weekly, monthly or other periodic rent leads to a presmnption of
such a periodic tenancy as the case might be. A holding over with the consent of the
landlord, which prima facie gives rise to a presmnption of tenancy at will, may be
converted by the parties through their acts or expressly into a weekly, monthly or other
. d'JC tenancy. 31
peno

D. Tenancy at will

A tenancy at will is a tenancy that can be determined at the will of either party. Like other
tenancies, a tenancy at will arises by contract, express or implied, binding both the landlord
and the tenant. It may also arise by implication of the law. A tenancy at will must be at
the will of both parties. 32It is of no effect if the agreement be expressed that it will
terminate at the will of the landlord only or the tenant only; the law will imply that both
the parties have the right to terminate the tenancy.

A tenant who at the end of his lease becomes a tenant at will holds under such terms of the
lease in all other respects, except the dmation of time; and when he pays or agrees to pay
any rent therein expressed to be reserved he becomes a tenant from year to year. 33 So long
as the tenancy exists, the landlord cannot recover the premise in an action for the recovery
ofland without previous demand of possession or other dete1mination ofthe tenancy. 34

A tenancy at will is determinable by either party on his express or implied intimation to the
other party that the tenancy should not come to an end. However, this is subject to
applicable statutmy provisions under which the tenant is given secmity of tenure. At the
determination of such a tenancy, a tenant should be given reasonable time to remove his
chattels.

30
Mellow .v. Law(1923) lk.b. 522
31
Cole .v. Kelly (1920) 2 K. B. !06;C.A., at p.132
32
Supra note 3, p. 35
33
Ridge .v. Bell (1793) 5 T. R.471
34
Lewis .v. Beard (1811), 31 East .210

14
E. Tenancy at sufferance

This arises when a tenant who held a lawful title continues in possession after the expiry of his
title without any statutory rights and without assent or dissent of the person entitled to the
property. This tenancy only arises by implication of the law and carmot be created expressly by
contract? 5

A tenant at sufferance by virtue of his possession maintains an action of trespass and can bring
an action for ejectment. 36 He may also leave at any time without giving notice. 37

There is a difference between a tenant at sufferance and a tenant at will in that the former holds
over a wrong doing after the expiration of a lawful lease while the latter is always by right. 38

F. Tennancy by estoppel

Tenancy by estoppel arises when the landlord purports to grant a lease out of time when he holds
no estate in the land and if he later acquires the legal estate he is estopped from denying a
tenancy. A tenancy by estoppel may arise also where the landlord is merely a licensee and so has
no power to grant a lease. 39 Such a tenancy has most of the characteristics of the tme lease, For
example, the tenancy maybe periodic or for a specific period, according to the circumstances in
which it came into existence or terms of the grant.

The tenancy is not only enforceable between the parties but can be assigned to another person or
can pass under a will or intestacy.

2.4 Types of Business Leases

A. A fixed term lease

As the name implies a fixed has a fixed starting and ending date. This can be for any duration

35
Supra note 3, p. 32
36
Asher .v. Whitlock
37
Supra note 3, p. 33
38
Cobb .v. Lace (1952) !ALL E.R 1199
39
JG Ridall, Landll)w 7'h ed (London Butterworths 2003)311

15
leases ranging from two months, fourteen years or ninety nine years are examples of fixed term
leases. 40 This lease automatically come to an end when the period stated expires.

B. Periodic lease
A periodic lease tenancy is a tenancy that continues indefinitely until ended by proper notice by
either party. Examples of periodic leases are monthly, quarterly and yearly lease. Subject to
agreement to the contrary or to statutory provision, the length of notice required to terminate the
lease depends on the form that a periodic lease takes. As such monthly lease will be terminated
by giving a months notice and quarterly lease will be terminated by giving 3months notice and in
this case the notice will expire at the end of a completed period.

This maybe created expressly or maybe implied. Where the terms such as monthly lease,
monthly tenant, from month to month is used, a periodic lease is created. Where there no
circumstances from which there is no intention to from a certain form of lease maybe infened or
where there are no express words create a particular form of lease, then by implication of law a
periodic lease arises. Thus the form, which the periodic lease is created will depend on the period
by which the rent is measured.

Therefore as afore discussed the types of tenancy in the United Kingdom under the Landlord and
Tenant Act 1954, the Uniform Residential Landlord and Tenant Act in America and the Bill of
Rights in South Africa show that all form of property holding is leasehold and the types of leases
available and the period in which the tenancy can be held in.

1.4 leases distinguished from othe1· Agreements

Whether a transaction is a lease or a license depends primarily on the intentions of the parties. A
lease differs fi·om a license in a number of ways, the most paramount being that the lease entitles
a tenant to the exclusive possession of property, whereas a license does not entitle the licensee to

40
J. G Ridall Landlaw 71h ed 9 London Butterwmths.2003)307

16
exclusive possession. 41

In the case of Chiluzya .v. Kangunda. Another distinguishing feature is that a lease conveys an
estate in the land to the tenant but a license passes no estate in the land to the licensee. A license
merely gives the licensee the right to use premises for a given purpose and to do something
rightfully on the land otherwise be a trespass.42

A lease granted cannot be revoked but a license maybe revoked by the grantor at any given time
upon reasonable notice. This is so even where the license is granted by deed. Another distinction
is that a lease can be assigned to a third party in the absence of express stipulation in the
agreement to the contrary but a license cannot be assigned unless coupled with interest. 43

A lease does not come to an end if the original landlord ceases to be the owner, for example, if
he sells the property or dies. A license on the land is determined if the grantor ceases to hold
44
property over which it is exercised.

B. Leases and Agreement for Lease

A lease is a contract or agreement between the landlord and tenant with the object and effect of
conveying an estate in land to the tenant and giving the tenant possession of property let. An
agreement for the lease on the other hand is a contract between two parties to grant and take a
lease at some future time, "the object of an agreement for a lease is neither to convey land nor to
give possession of but merely to an·ange that a lease shall be granted in accordance with the
agreement that is made."45

As a rule, the courts in determining whether a transaction is a lease or an agreement for a lease,
where difficulty arises, will give effect to the intention of the parties as maybe gathered from the
document. Even if the document is drawn as a lease but contains a stipulation that it shall not
operate until something further is done, the document will not be construed as a lease but merely

41
Supra note I5, p.287
42
Thomas .v. Sorrel (163), Vaugh .330,35I
43
Musket .v.Hill (I839), 5 Bing. N.C 694,707
44
Webb .v.Paternoster(I6I9),Proph .I5I
45
Adkin, Landlord and Tenant, supra note I 7, p.3 I
17
an agreement for a lease which will commence when such a thing is done. Similarly, even the
most informal words, provided they show that the parties have mutually agreed that one will give
and take possession, it will be construed as a lease. 46

2.4 Internationally

The Landlord -Tenant relationship is defined by the existence of a leasehold estate47 .


Traditionally, the only obligation of the landlord in the United States was to grant the estate to
the tenant,48 although in England and Wales, it has been clear since 1829 that a landlord must

put a tenant into possession . Modem landlord and tenant laws include a number of other rights
and duties held by both landlords and tenants. In American landlord and tenant law, many of
these rights and duties have been codified in the Uniform Residential Landlord and Tenant Act.

In England the Landlord and Tenant Act 1954 governs the rights and obligations of the tenants of
the premises which are occupied for business purposes. In the United Kingdom the machinery
for the working of the Act is to provide security of tenure for the tenant, the tenant of the
premises from which a business is carried on has security of tenure when the agreed term of his
lease comes to an end; this means that even though the fixed term of the lease has come to an
end, tenants of business premises have the right to remain in occupation at the end of the
contractual term of a lease and secondly the right to apply to comi for grant of a new lease.

Under this Act the tenant can apply to court for a new lease even without the consent of the
landlord. However there are grounds on which the landlord can regain possession of the premises
where; the landlord wants to repossess the premises for development pmposes or wants to
occupy the premises himself, the tenant has a history of non-payment with the lease obligations
and lastly where the premises have been split up for subletting into a number of units and the
whole premises would command a higher rent if let together under one lease.

This security of tenure can be excluded by agreement, this is mostly done where; the landlord

46
ibid
47
Casner ,AJ.Caeses and text pn property,Fifth Edition ,Apsen Publishers, New York,2004,p.403
48
Teitlebaum .v. Direct Realty Co,l3,NYS(NYI939)

18
intends to carry out a redevelopment, the lease is for a very short term and where it is an under
letting of a part of a larger holding.

Under this Act a business tenancy which is protected will continue unless is terminated or
brought to an end in a number of ways set out by the Act. Firstly by a request to terminate from
the tenant brought under section 26 of the 1954 Act, this is a notice given by the tenant to
terminate or end t)le lease on a specified date.

In South Africa the landlord and tenant relationship of business premises is an important tool for
the economic growth as it is real property investment. This is great comparison so as to discover
how this can bring about social and economic development in Zambia. Its main objective is to
determine whether the laws governing the rights of landlords of business premises contribute to
social or economic development.

The rights considered under the business premises tenancy is to know whether the right of
benefit from the property so as to generate a profit for the use of property and the right of
exclusion which permits the property to exclude other people fi·om entering the property.

19
CHAPTER THREE

LEGAL AND INSTITTUTIONAL FRAMEWORK

3.0 Introduction

Zambia has its legislation in the English Legal system and legislation governing landlord-tenant
relationships is no exception. In fact much of the Zambian legislated law is either English
legislation extended to Zambia or legislation mainly based on English Acts with few medications
to suit the Zambian environment. Landlord and Tenant relationship as regard business premises
are regulated mainly by the Landlord and Tenant (Business Premises) Act, as well as the
common law principles on which legislation is based. It is apparent that Zambian Landlord and
Tenant (Business Premises) Act has hardly been based on the two English Landlord and Tenant
Act of 1954.49 This is evident from the similarities in the provisions not withstanding a few
modifications, it is therefore prudent that events leading to the enactment of legislation to where
in the Landlord and Tenant relationship in England are also examined.

3.1 Pre- 1954 Legistlation

Legislation to limit the right of landlords to increase rents and claim possession was first enacted
in England dming the first world war 1914-1918 to meet the situation arising from the shortage
of accommodation or housing and the consequent increase in rents.

The problems of security of tenure for business tenants in England where first dealt with as early
as 1889. The Committee on Town holdings recommended that the problem should be dealt with
by compensating tenants for loss of goodwill and for improvements rather than by giving to
50
tenants the right to renew their leases. However the first pe1manent in England was part I of
the Landlord and Tenant Act of 1927 introduced by the Administration of Mr. Baldwin.

Part 1 of the 1927 Act entitled a tenant of business and professional premises to obtain

49
Musingah .v. Daka ( 1974) Z.R 37(H.C)
50 Barnes, M. et al ed. Hill and Redman's Law of Landlord and Tenant !7'h ed.Vol.l.p 685

20
compensation on quitting the holding for improvements canied out by himself or the predecessor
in the title which at the termination of the tenancy add to the letting value of the holding. The Act
also provided that the tenant should receive compensation for goodwill and for renewal.
Goodwill in this sense meant the increased rental value of the premises after the departure of the
tenant.

3.2 The 1954 Landlord and Tenant Act

The groundwork for part II of the Landlord and Tenant Act of 1954 was laid by the final report
of the Committee under the Chairmanship of Lord Justice Jenkins in June 1950.51 Among the
terms of reference of the committee was to consider whether business tenants should enjoy
security of tenure and whether the rents of business premises should be controlled. The
Committee recognized as justifiable many of the complaints raised against the 1927 Act . it
recommended that there should be no general control of rents of business premises like that of
the residential rent under the Rent Acts.

However, it did nit recommend that there should be a radical increase in the security of tenure
given to business tenants and that the right to renew existing leases should be the primary
remedy available to such tenants.

Most of the recommendations of the Committee were incorporated in the 1954 Act, such as the
landlords right to defeat, on certain grounds, the tenants claim for a new tenancy. Another one
was the recommendation that new tenancies should not exceed a term of 14 years and should be
on the same terms as the existing tenancy. However, certain recommendations did not find their
way into the Act prominent among them was the recommendation that a tenant should only be
entitled to a new tenancy if he could show that without the renewal the value as a going concern
of his business would be substantially diminished. 52

The 1954 Act substantially changed the 1927 Act by enhancing the security of tenure for tenants
of business premises. Compensation for improvements, which was the creature of Pmt I of the

51
Cmd 7982
52
Supra note .2.p 686
21
1927 Act, was retained. However, such rights as the right to compensation for goodwill under the
Act were repealed by the 1954 legislation.

3.3 Background to the Zambian Legistlation

The Landlord and Tenant (Business Premises) Bill was read for the first time in the National
Assembly on November 23. 1971. 53 It was read for the second time on November 281h, 1971 by,
the then Minister of State Province and Local Govermnent and Culture, Mr J.H. Monga. It was
the ministers intention to introduce at the same time a complemantary bill concerned with
residential premises only. The aim of introducing two bills at once, one concerned with lettings
of business premises only and the other concerned with residential premises only, was that
together two bills would supersede the Rent Control (Temporary Provisions) Act of 1968, which
applied to both commercial and residential premises. This Act only applied to the cities of
Lusaka, Kitwe and Ndola and was meant to expire on 31 ''December, 9171 unless extended.

The 1968 Act was never intended to have a lasting but temporary effect. This was also made
clear at the time the Bill was introduced in the National Assembly. The Minister stated that the
1968 Act was indeed a short te1m measure, which would be replaced as soon as the Landlord and
Tenant legislation in a comprehensive form could be introduced.

There are two main reasons that prompted the need to enact the Landlord and Tenant (Business
Premises) Act. The first one is that, after seven years of independence there was a progression in
building development and an increase in the use of these properties for business. The other
reason was the need to tailor legislation to conform to the national economic policies as set out in
the Second National Development Plan. The Act therefore, sought also to empower the
indigenous Zambians who were the majority of tenants against their landlords who were mainly
either non- Zambians or non-indigenous Zambians.

3.4 The Landlord and Tenant (Business Premises) ACT

The main objectives of the Act are found in the, Ministers Speech when introducing the Bill as

53
Zambia National Assembly Hansard 1971 No, 28, p.62

22
well as in the preamble of the Act. During the Second Reading of the Bill in the National
Assembly, the Minister set out the objectives of the Act as follows, "Mr Speaker, Sir, the
adoption of the principles I have mentioned meant that the sum and the substance of the bill in
the security of Tenure for tenants who have built up their businesses, with the additional security
from any risk of a landlord, either at the end of a tenancy or at the commencement of a first
54
tenancy ......

The preamble of the Act sets out the objectives of the Act as follows," to provide security of
tenure for tenants occupying property for business, professional and certain other purposes and to
enable such tenants obtain new tenancies in certain cases.

The provisions of this Act only apply to ce1iain holding, that is, holdings where the premises are
held under a lease and used wholly or partly for can)'ing upon them any trade. The Act applies to
all business tenancies in Zambia with certain exceptions. 55

The term tenancy is defined under Section two of the Act to mean" tenancy of business premises
(whether written or verbal) for a term of years certain not exceeding twenty one years, created by
lease or under lease, by tenancy agreement or by operation of the law, and includes a sub-
tenancy but does not include a mortgagor of a mortgagee as such and references to the granting
of the tenancy and to demised property shall not be construed accordingly.

The Act however does not shed any light on the meaning of the expression "term of years not
exceeding 21 years." The court has relied on the common law interpretation as given by the
56
English comis in interpreting the English Act. In the case of Musingah .v. Daka , the High
Court relied on English authorities in its holding that the expression cannot be given its ordinary
meaning. The me.aning of the expression was defined by Doyle, C.J to mean "term certain not
exceeding twenty one years." 57 In the case of Patel Zambia ltd .v. Bancroft Pharmaceuticals
Ltd, 58 the court stated that, in effect," a term of years certain" seems to mean a lease for any
period having a fixed and certain duration minimum and held a monthly tenancy to be such.

54
Op.p.136
55
Section 3(1), Landlord and Tenant (Business Premises) Act
56
(1974) .Z.R .37(H.C)
57
Musingah .v. Daka, supra note I
58
(1974) Z.R .270

23
The Act does not apply to some tenancies listed under section 3 (20. These are;

a) Agricultural holdings
b) Premises let or used exclusively for residential purposes
c) Premises led by government or District council
d) Premises held by tenant by virtue of his employment
e) Premises held by a tenant under the tenancy for a tetm of certain exceeding 21years.
f) The tenant has been in occupation for a period, which together with any period or
predecessor in the carrying on of the business carried on by the tenant exceeds six
months.

A tenancy does not quality under this Act unless the whole or part of the demised premises is
occupied by the tenant and are so occupied by the tenant and are so occupied for the purposes of
59
a business carried on by him or of those and other purposes. The Occupation and the purpose
to which it is devoted are subject to the statutory definition of the word' business'. The Act
defines the word business as " trade, an industry, a profession or an employment and includes
any activity carried on by a body of persons whether corporate or incorporated, but does not
include farming on land. 60

Thus there are three basic requirements that are essential conditions if a tenancy is to be
protected under this Act. The first one is that there has to be a tenancy. This means that a mere
license does not confer statutory protection. Secondly, the tenant has to occupy at least a part of
the premises, which means the tenancy of an incorporeal heridament such as a right of way is not
within the protection of the Act since such use or enjoyment of such does not require occupation.
Personal occupation by the tenant is not essential; occupation by an agent or management is
sufficient. 61 The court of appeal by a majority decision held that the board of governors of a
hospital was in such a responsible position in regard to the hospital that the board would be in
occupation for the purpose of the Act. 62

59
Blundell L.A anci Wellings .V. Woodfalls Law of Landlord and Tenant ,27 ed Vol2.p 1308
60
Section 2, Landlord and Tenant (Business Premises) Act
61
Cafeteria ( keighley) .v. Harrison(1956)168 E.G 668 per Denning L.J
62
Hills (Patents) .v. University College Hospital Board of Governors [1957]QB 90 per Denning L.J
24
3.5 Security of Tenure

The main purpose of this Act as stated in its preamble is to give security of tenure to tenants of
business premises. This is done by a number of provisions in the Act that prevent the landlord
from terminating a tenancy at will, provisions that prescribe ways and means of terminating a
subsisting tenancy and provisions giving comis power to order for grant of a new tenancy.

A. Continuation of tenancy

Tenancies to which the Landlord and Tenant (Business Premises) Act applies are by section 4(1)
continued automatically until brought to an end by statutory notice given by the Landlord or the
Tenant, or until the occurrence of ce1iain other contingencies 63 • This means that when a
contractual tenancy comes to an end, a new tenancy may come into existence either by
64
agreement of the. Landlord and tenant or by order of the court65 . In the meantime section 4
provides for the old tenancy simply to continue. This is done without the need of any notice or
other action taken by either party. In short, section 4 provides for the estate in land vested by the
tenant to be prolonged until brought to an end in one of the prescribed ways under the Act66 •

Thus, all terms and conditions of the contractual tenancy will continue to govern the prolonged
tenancy. This is notwithstanding the Landlords right to termination of the contractual
relationship. A tenancy being continued under section 4 can be dealt with as any other tenancy,
that is, it can be assigned, surrendered or forfeited in the normal ways. There is a difference
between terminating the contract and terminating the tenancy.

B. Application for new Tenancies

i) Application to the landlord

A tenant may request for a new tenancy from the Landlord under section 6 of the Act. Not all
tenants can make this request but those whose current tenancy, that is a tenancy which they hold

63
Landlord and Tenant (Business Premises ) Act
64
Section 9, Landlord and Tenant( Business Premises) Act
65
Section 10, Landlord and Tenant (Business Premises) Act
66
Supra note 2,p 321

25
for the time being67 , is a tenancy for a term certain and thereafter from year to year.

Section 6 (1) " only enables a tenant from year to year to apply for a new tenancy where the
tenancy from year to year is provided for by the new grant in addition to a term of years certain,
and not where, by implied agreement, it has been grafted upon by the original term of years68 •

No request for a new tenancy can be made once the landlord has served notice, under section 5,
to te1minate the current tenancy, or if the tenant has already given notice to quit or notice under
section 869 . A tenant who has been served with a notice by the Landlord under section 5 can only
exercise his right of giving notice to the landlord of his unwillingness to give up possession and
apply under section 4 (i) (a). Once the tenant has served a request for a new tenancy the landlord
cannot thereafter serve a notice under section 5 nor can the tenant serve a notice to quit or a
notice under section 6(1 ).

(II) Application to the court

A tenant may apply to the comt for a new tenancy and the comt has jurisdiction to order the
grant of a new tenancy. 70 There are only two circumstances in which such an application can be
made. The first one is where the landlord has terminated the current tenancy by notice served
under section 5 of the Act. The Supreme Court re-affirmed this when overturning a ruling by the
71
High Comt in the case of Minos Panel Beaters Ltd .v. Chapasuka • The second is where the
tenant himself has terminated the current tenancy by notice by a request for a new tenancy under
section 6.

The Act provides for a strict timetable governing the application to the court for a new tenancy.
Section 10(3) states that" Subject to the provision of subsection (4), no application under
subsection (1) of the section shall be ente1tained unless it is made not less than two nor more
than four months after giving of the landlords notice under section 5 or, as the case maybe, after
the making of the tenants request for a new tenancy". Subsection 2 gives a further requirement

67
Section 6(1), Landlord and Tenant( Business Premises) Act
68
Supra note II, p1337
69
Section 6(4), Landlord and Tenant( Business Premises) Act
70
Section 10 (I) Landlord and Tenant( Business Premises) Act
71
( 1986) Z.R l(S.C)

26
that the tenant has notified the landlord within two months that he is unwilling to give up
possession.

The word court has been defined under section 2 to mean;

"(a) In relation to any premises the annual rent of which exceeds three thousand six hundred
kwacha, the High Court; and

(b) In relation to any other premises, a subordinate comi of the first class presided over by a
senior resident magistrate or a resident magistrate".

C. Opposition to the Application of New Tenancy

A landlord can oppose an application by the tenant, under section 4(1) for grant of a new
tenancy, on ground specified under section 11. The landlord can only rely on specific grounds
which either he or his predecessor landlord had stated in his notice under section 5 or, as the case
maybe in his notice of opposition to tenant's request under section 6 (6).

i)Breach of repairing obligations

The mere proof of existence of breaches of the repairing obligations does not itself entitle the
landlord to have the tenant's application dismissed. There is a discretion in the comi to consider
the seriousness of the breach in relation to the state of repair of the holding generally. 72

ii) Persistent delay of payment of rent

The court had discretion of weighing up the seriousness of the tenant's conduct and to decide
73
whether or not in view of such conduct he merits a new tenancy . The term ' persistent delay'
indicates a course of conduct over a period. 74

iii) Breach of other obligations

72
Lyons .v. Commercial Properties London [I957] I W.L.R.869
73
Supra note I I.p 1358
74
Horowitz .v. Ferrand.[ I 956]5 C.L. 207

27
accommodating its employees in the premises would defeat the object section 11(2).

vi) Landlords intention to demolish or reconstruct

The landlord has to show that he cannot affect the demolition or reconstruction without obtaining
80
possession of the holding • If the landlord can then reasonably carry out the demolition or
reconstruction of the holding without interfering to a substancial extent or time with the tenant's
use of the holding for the purposes of his business a new tenancy must be granted81 .

vii) Landlords intention to occupy holding

Section 11 (2) states that the landlord cannot rely on this ground of opposition if his interest was
purchased or created in the five years prior to the determination of the cunent tenancy and the
holding has been comprised in the tenancy or successive tenancies within the Act ever since his
interest was purchased or created. The aim of this is to prevent persons to purchase the reversion
upon business tenancies just before they end and obtain possession for their own purposes.

C. Compensation

The principle which underlies compensation under the Act is that a tenant is entitled to be paid
compensation amounting to a reteable value of holding, when he is precluded from obtaining a
new tenancy on because of the landlord's opposition on grounds (e),(f) or (g). 82

" The grounds for opposition under the said paragraphs(e), (f)and (g) of section 11 ( 1) of the
Act,[i.e more valuable as a whole, demolition or reconstruction and own occupation
respectively] are similar in that they are all for the landlord's benefit." 83

The precise circumstances in which the entitlement to compensate arises are twofold. The first is
where there is an application for a new tenancy and the court is precluded from ordering the
grant of a new tenancy on grounds (e), (f) or (g) under the section 19(1 ).

80
Boltons"( House Furnishers) v. Oppenheim [1959]1 W.;.R.p 913
81
Supra note 39
82
Supra note 2, p. 107
83
Mudenda, F.Protection of Tenants of Business Premises in Zambia; lecture note, unpublished

29
can inter alia be limited by way of penalty for breach of the law. Though article 16 provides for
the protection from deprivation of property it also gives limitations of the right of property.

3.6.1 Right to Exclude

The right to exclude others from the use and occupation of the land is one stick in the
metaphorical bundle. The right of exclusion entitles the Landlord to exclude others from the use
or occupancy of the property. For example; the holder has the right to exclude is generally
entitled to prevent neighbors' and strangers from trespassing on the premises. However this right
is not absolute as police or anyone with a legal right can enter the premises.

The right to exclusion is enjoyed by landlords of business premises in Zambia and it contained in
the statutes governing the rights of landlords. The right of exclusion from the property is
contained in every business lease either expressly or implicitly in the Landlord and Tenant(
Business Premises) Act 86 .

3.6.2 Right to Possess and Use

The right to possess and use is another stick in the bundle of rights. The property owner or
landlord had broad discretion on how the premises should be used. This right is temporary
smTendered by way of lease for a definite term in exchange of rent.

3.6.3 Right of Benefit

The right of benefit entitles the property owner or landlord to any profits generated from the use
of the property. This right is one of the rights from the real right of ownership that is guaranteed
by the Constitution of Zambia as it arises from the contract.

The benefit referred to by the said right maybe in form of rental income. The Landlord and
Tenant (Business Premises) defines rent to include any personal smn payable by the tenant to the

86
Cap 193 ofThe Laws of Zambia

31
Landlord in connection with his tenancy.(Whether under lease or otherwise in respect of lighting,
·
heatmg, fu rmture
· or other services.
· n

In order to enjoy the benefit of rental income, the landlord has to transfer rights to the tenant or
lessee.

3.7 Termination of Tenancies

As a landlord conducting business in real estate the landlord is entitled to rent and profits of the
demised premises payable under the tenancy. In view of this, it is important that the landlord
must be able to te1minate the lease when the tenant materially breached the te1ms of the
agreement. The fundamental rule of this Act is that a tenancy within its scope can only be
terminated by means prescribed in the Act. A tenancy under this Act may be terminated either by
the landlord's notice to terminate a tenancy, a notice to quit by the tenant, surrender, forfeiture or
by a new tenancy granted by agreement.

The Landlord and Tenant (Business Premises) Act provides in section 4 (1) that a tenancy to
which the Act applies shall not come to an end unless terminated in accordance with the
provisions of the Act. The security of tenure is secured under this Act which gives the tenant the
right to apply to comts to grant for a new tenancy. In this respect, the Act in section 4(1)
provides subject to section 10, which provides for grant of new tenancy by order of court where
the tenant may apply to court for a new tenancy.

i) Termination by landlords notice to quite

The primary method given to a landlord under the Act for determining a tenancy is by service of
notice under section 5. There are certain requirements a notice under this section must meet if it
is to be effective.

The first is that the notice should be in the prescribed form and should specifY the date on which
88
the tenancy is to come to an end • In the case ofMususu Kalenga Building Ltd .v. Richmans

87
Section 2, The Landlord and Tenant (Business Premises) Act.
88
Section 5 (Landlord and Tenant (Business Premises) Act
32
Money Lenders Enterprises 89 the Supreme Court held that it was incumbent upon the
appellants to comply with the provisions of Act by giving the respondent a proper notice to
terminate the lease and that they acted in their own peril by not doing so. The landlord may rely
on the notice to terminate given by the previous landlord 90 and maybe signed by or on behalf of
the landlord by his advocate.

There is also an overriding rule that the date of termination, must not be more that twelve and not
less than six months before the date of termination. The rationale of this rule seems to be that,
since the object of the Act is to enhance and not reduce the protection of business tenants, a
tenancy for a term of certain should not be made to come to an end earlier than the term date.

The notice must also require that the tenant notifY within two months whether he will be willing
to give up possession at the date of termination. 91 The notice under this section must also state
whether the landlord will oppose an application by the tenant to the court for the grant of a new
tenancy and, if so, must state the grounds under section II he would do so. 92

These requirements are very important, for without them the notice given by the landlord is
invalid and the te~ancy canies on as continued under section 4. 93

ii) Termination by tenants notice to quite

Section 4 of the Act does not oblige the tenant to continue with the tenancy. A tenant's primary
method under the Act of determining a new tenancy under the Act is by requesting for a new
tenancy under section 6. However, the tenancy may not wish to continue with the tenant because
he no longer desires to continue occupying the demised premises. Such a tenant does not require
any ftuiher protection from the Act and can give to the landlord notice that he does not want to

89
SCJ No 4 of 1999
90
Apollo Refrigeration Services Co LTD. v. Fanners House Ltd ( 1985) Z.R 182 ( S.C)
91
Section 5 (I), Landlord and Tenant9 Business Premises) Act
92
Section 5 (6), Landlord and Tenant (Business Premises) Act
93
Supra note II, p.1330
33
continue wish the tenant to be continued and section 4 shall have no effect to the tenancy94 • He
must give notice at least three months before the term date.

Where a tenancy originally granted for a term certain has been continued under section 4(1 ), the
tenant can bring the continuation to an end by serving on his immediate landlord not less than
three months notice in writing95

iii) Termination by new tenancy granted by agreement

Another case where the cun·ent tenancy, whether or not has been continued under section 4,
comes to an end is provided for under section 9. The Act states," where the landlord and tenant
agree upon the grant to the tenant of a future tenancy of the holding, or of the holding with other
land or premises on terms and from a date specified in the agreement, the cun·ent tenancy shall
continue until that date but no longer, and shall not be a tenancy to which the provisions of this
Act apply".

Once such agreement is made for a new tenancy to commence from the future date, the tenant
cannot change his mind and claim a tenancy under the Act. This section has been worded in such
a way that it will apply to an agreement for a new tenancy to commence during the subsistence
of an existing contractual term and the latter will automatically come to an end on the date
agreed for the commencement of the new term.

iv) Termination by forfeiture of surrender

These are methods of dete1mining a tenancy under common law, which remain effective under
the Act.

The law as relates to forfeiture is unaffected by the Act. The landlord can always seek to end the
tenancy for breach of a covenant in accordance with the usual forfeiture clause 96 . Forfeiture
always operated subject to the rights of the tenant and sub-tenant to relief against forfeiture under
common law. Unless the tenant can avoid the forfeiture under common law, he will lose all his

94
Section 8 (1), Landlord and Tenant( Business Premises) Act
95
Section 8(2), Landlord and Tenant (Business Premises) Act
96
Supra note 2,Hill'and Redmans law of Landlord and Tenant,p.700

34
tenancy rights and security of tenure. Forfeiture an estate also brings to an end all inferior
tenancies such as a sub-tenancy. 97

The Act under section 4 (2) also allows for determination of a tenancy under the Act by
smrender, expressly or by operation of the law. Sun·ender by operation of the law arises where
the tenant quits the premises by a mere common law notice to quit rather than a notice to quit in
a prescribed form under the Act. 98 Surrender also deprives the tenant of the rights to continuation
of the tenancy under section 4 and the right to a new tenancy under section 6.

The chapter has shown that no matter how much the landlord wants to evict a tenant personally
there are procedures to be followed under the law as eviction proceedings are an action in the
comis oflaw and that the principle Act is the Landlord and Tenant (Business Premises) Act.

97
Supra note II ,p.l328
98
Bolton (H.L) (Engineering) Co.v. T.J Graham &Sons[ 1958]1 Q.B !59

35
CHAPTER FOUR

ANALYSIS OF THE LANDLORD AND TENANT (BUSINESS PREMISES ACT)

4.0 Introduction

It is important to note that a lease agreement must by its very own nature, come to an end. A
lease agreement is an essential contract between the propetty owner (landlord) and the person
renting the property (tenant) in which the landlord sets the terms and conditions regarding the
property, such as the duration of the lease period, rent payable and the duties of the tenant and
the landlords and that must be complied with. Termination of a lease can take place in any of the
ways which obligations are normally tenninated for instance, agreement, performance,
prescription and rescission after the breach of contract. In indefinite leases with periodic
payments of rent, such as weekly, monthly or yearly.

The obligation of the lessee are to pay rent duly for the purpose of which it was let. The lessee's
primary duty is to pay rent as agreed upon for the use of the property. In most instances there
will be agreement or particulars of payment; for example, agreed that rent will be paid on a fixed
date, monthly or in advance.

Where the lessee does not pay rent, the lessor is entitled to normal contractual remedies of
specific performance, repudiation and damages. The enjoyment of rental income is one of the
major reasons landlords decide to put their real estate propetty on rent. Therefore it is important
that landlords collect rent and follow the conect procedures.

While the Landlord and Tenant (Business Premises) Act provides for the procedure and grounds
for tetmination of leases it is silent on the procedure for collection or rentals, overdue rentals.
However it states that there are two ways in which the overdue rentals can be collected, thFirstly,
the Landlord can distress for rent and Secondly, the Landlord can use the legal comt process.

36
Though the Landlord and Tenant( Business Premises) Act does not provide for Rent collection
as its sole purpose is provide security of tenure than with the controlling ofrent and the amount
payable for using business premises.

4.1 Distress for Rent

Distress for rent is a summery remedy by which a person is entitled without the legal process to
take into his possession the personal chattels of another to be held as a pledge to compel
performance of duty, the satisfaction of a debt or demand or the payment of damages, this is a
common law right. In Lyons .v. Elliot 99 Blackburn. J observed that the right of distress is a right
of a landlord to seize movable property form the demised premises and to hold them until rent is
paid or the service performed. Since the right of distress is a right of distress for arrears of rent is
at common law. It is implied in every lease agreement in Zambia. The landlord can exercise the
right of distress against the tenant only when rent is due or arrears are due. 100 The meaning of
101
rent in arrears was considered in some case. In Hampako .v. National Housing Authority it
was observed that rent payable in advance maybe distrained for on the day following that fixed
for payment.

In the case ofPaparax Limited.v. Delux High School102 Justice Ngulube observed that it is the
Rent Act in Section 14 that impose a restriction n the levying of distress for rent of dwelling
houses which can only be done with leave of the court and that there is no similar restrictions
under the Landlord and Tenant( Business Premises ) Act. In the same case, Justice Ngulube
finiher observed that there was nothing illegal or unlawful in the appellant's issuing of warrant
of distress for an'ears of rent under the Law of Distress Amendment Act 1888 of the United
103
Kingdom • The said British Statute applies to Zambia by virtue of English law (Extent of
Application) Act. 104

99
[1876]QB 2210 .. 213
100
Halsbary laws of England 3'd ed 87
101
( 1988/89) ZR 61
102
Supreme Comt Appeal No 141 of 1996[SC]
103
Halsbury's Statutes of England 3'd ed .vol9
104
Chapeter 11 of the Laws of Zambia

37
Other British statutes on the subject of distress that apply to Zambia are, inter alia, the Distress
for Rent Act ,1689, Distress for Rent Act 1737,Law Of Distress Amendment Act of 1888.

The Distress for Rent Act, 1689 provides for the selling of the demised goods after five days if
105
the distrainee does not exercise the right of replevy • In the case of Robinson .v. Waddington,
the five days are exclusive of the day of the levy. The only exceptions to this right include, goods
of the tenant's spouse and goods under hire purchase or other credit agreements. 106

4.2 Property Attachment

Instead of distraining for rent in person, the Landlord can make use of a bailiff. A certified bailiff
is fully conversant with the law of distress and the procedure to be adopted in levying a distress.
Where the bailiff is used, the landlord is required to follow the legal route, which requires the
landlord to obtain a court order, which is enforced by the bailiff. A judgement for recovery of a
specified sum of money such as rentals maybe enforced by writ of feiri facias. A writ of Feiri
Facias is issued pursuant to Order 42 rule 3 of the Surbodinate Court Act. The writ must reflect
the amount of money awarded by the court and the judgment sum and interest where some is
accumulated. The sheriff may seize all property that can be sold to cover the payment except
personal clothing and the tools and implants of his trade. 107

In conclusion it shows that the courts of law in Zambia have little or no power in the control of
rents to be paid or how they are collected as the parties to the lease agreements state the
conditions and rentals at their own accord and the study analysis shows the options given to the
landlord in the collection of rentals and also the collection of overdue rentals.

According to all that has been discussed above, it is clear to note that the United States, The
United Kingdom, South Africa and Zambia have common grounds for the termination of the
contract of the lease agreement, secondly all the types of business leases, period of tenure ,
collection of rent and all the discussed above are the same in all countries both on an
international and regional level.

105
Section I
106
Section 4(A)
107
Oder 4 I Rule 5.Cap 28 Laws of Zambia.
38
Therefore the main aim of the legislation guiding the landlord and tenant in business premises is
to provide security of tenure and improve investment which will benefit the landlord through rent
collection and also protect the tenant by protecting them from adverse possession from third
parties.

39
CHAPTER FIVE

FINDINGS, EVALUATION AND RECOMMENDATIONS

5.0 AN Evaluation of the Act

An evaluation of the Act reveals that it has a different degree of success. The Landlord and
Tenant (Business Premises) Act has a great impact because it has achieved most of what it was
set out to do so evidenced from the litigation based on it. The Act is ambitious as it mainly
restricts itself to giving security of tenure to the tenant and to enable him obtain a new tenancy in
certain cases. Though there other Acts that are supportive of The Landlord and Tenant (Business
Premises) Act like the Rent Act whose main objectives are to fix rent, restrict rental increase
108
,restricting premiums and the rights oflandlords to possession or ejectment The effect of this
is that, in the case of The Landlord and Tenant ( Business Premises) Act , there is very limited
supervision required from courts or any other body.

The parties to a tenancy under the Landlord and Tenant ( Business Premises) Act are left to agree
109
on the amount of rent at the onset of the tenancy. Section 16 of this Act gives the Landlord
and Tenant freedom to agree on the amount of rent payable when a new tenancy is granted by the
court and only when this has not happened can the court determine the rent. However the court in
detetmining the rent must have regard to the terms of the tenancy and the terms at which the
holding might reasonably be expected to be let in an open market by a willing lessor. 110 This is
an example of the freedom confened on the landlord and tenant of business premises. The court
only interferes, in most cases, where the parties have not or have failed to agree.

The tenants of business premises are much aware of the provisions of the Landlord and Tenant (
111
Business Premises) Act • There has been relatively much more litigation on the Landlord and
Tenant ( Business Premises) Act as a result most provisions of the Act has been interpreted by
the courts. This has given right of both tenants and landlords of business premises and this type
108
Preamble ,Rent Act
109
The Landlord and Tenant (Business Premises)Act
110
Section 16, Landlord and Tenant ( Business Premises)
111
Information obtained from random interviews of tenants of business premises at Woodgate house
along Cairo Road and Simoson Building along Lumumba Road.

40
of tenancy resorts to more court cases as the tenants of business premises are either business men
or incorporated companies with enough resources to afford legal advice and representation. The
relationship between the Landlord and the tenant exists as a result of a business venture, usually
there is a lot of money, goodwill and investment at stake hence the more need to go to court.

5.1 Recommendation

The relevance and applicability of The Landlord and Tenant (Business Premises) Act in Zambia
cannot be denied. However on the strength of the Act can be improved so it is more efficient . it
is on the premise of making the Landlord and Tenant ( Business Premises)Act more effective
that the following recommendations are rendered.

I) Under Section 4 (l)(a) and (b) of the Landlord and Tenant (Business Premises) Act, the
Act provides for the tenants to apply to the court for a new tenancy.
Section 4(1) (a) and (b) should therefore be reviewed in that it does not give the landlord
the power to exercise his right of possession.
2) The landlord and Tenant (Business Premises) Act should be amended to include
provisions to be followed to obtain an order for possession of the premises. This will
make the procedure more certain.
3) The Landlord and Tenant (Business Premises) Act should also be amended to include
provisions on the procedure for collection of overdue rentals. This will make the
procedure more certain to the landlord.
4) Although distress is not a right given by the statute, but rather a right created at common
law by the relationship of the landlord and the tenant, there is need for Zambia to enact its
own Rent Distress Act instead of relying on n old British statute. The proposed Distress
Act will consolidate and update the provisions on different British Statutes dealing with
Distress.
5) Alternatively, the Landlord and Tenant (Business Premises)Act can be amended so as to
provide for, inter alia, restrictions and limitations concerning goods belonging to third
pmiies and strangers not paJ.iy to the tenancy. The Act must also answer questions like;
against whom can the right of distress be used? When is this right lost or brought to an
end? When does it become too excessive?

41
6) The Act must be broadened in scope by not restricting grounds upon which the landlord
may terminate the tenancy. Section 11 of the Landlord and Tenant (Business Premises)
Act , whiCh prescribes grounds upon which the landlord would oppose to an application
to the court for grant of new tenancy must be amended to allow for more grounds.

5. 2 Conclusion

In conclusion it would be safe to say, the law relating to the relationship of landlord and tenant of
business premises has been a success in Zambia. This is evidenced by the smooth operation of
the Landlord and Tenant(Business Premises) Act. This Act has so been as can be seen from the
litigation of the Act. The coUiis have also been consistent in interpreting the various provisions
of the Act and also due to the fact that it has given latitude to the parties to agree on terms of the
tenancy agreement.

42
Bibliography

1. Barnes M and Dobry (ed) Hill and Redmans law of Landlord and Tenant
2. Mudenda F.S ( Protection of Tenants of Business Premises in Zambia) lecture notes
unpublished
3. Sprankling John G ,Understanding Property Law California
4. Halsburys Statute of England 3'd ed.Volume 9
5. Adkins Landlord and Tenant law
6. Bames, Hill and Redman's Law of Landlord and Tenant 17th ed
7. Holdsworth Historical Introduction to the Land Law
8. Holdswmih W.A History of English Law vol 111 gth ed
9. Lesser Hirram (Landlord and Tenant) law Boston: Little, Brown (1969)
10. Walton Rand Essayarn M A handbook of the law Relating to Landlord and Tenant 16th
ed
11. J .G Rundall land Law 7th ed
12. Pollock F and Maitland F.W The History of English law Before the Time of Edward.

43

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