LEASES

By Dr. Agola, L.D.

Meaning
• A lease means the grant of possession and use of land,
buildings, rooms, etc. to another person in return for rent or
other consideration.
• A document creating lease is also referred to as a lease.
• The contract of a lease is a division of the right to the unit.
Lessor allows the lessee possession and use rights, with some
restrictions in exchange for payment.
Law Governing Leases
• The legal framework for leases of right of occupancy in
Tanzania is provided by the Land Act and the Land
Registration Act, except customary leases and sub-leases
which are governed by customary law (see s. 19 of the Village
Land Act, Cap. 114 R.E. 2002).
Essentials of a Lease
• Defined premises: premises leased must be determinant or
capable of being clearly defined. For example, particular
room(s) in a house, a defined land/building, etc.
• Certain terms: The terms for which the lease is made must be
certain. see Lace v. Chantler (1944) K.B. 368
Cont.
• Exclusive possession: Since a lease is an estate in land
(property right) that should be enforced against the whole
world, including the lessor, the lessee must be given the right
to exclude all other persons from the demised premises
during the period of the lease.
• A right to occupy certain premises for a certain period cannot
be a tenancy if the person granting the right remains in
general control of the property, as is normally the case with
rooms in hotel or boarding house.
• A mere lodger has no tenancy (see Merchant v. Charters
[1977] 1 WLR 1181)
Types of Leases
• Fixed Term Lease
– A lease granted for a fixed duration. Both the commencement
and duration of the lease are certain before the lease takes
effect.
– The condition is that the term must be certain or must be
capable of being made certain {s. 78(1) of the Land Act}.
– The document creating a lease should specify when the lease
commences and when it terminates.
Cont.
Periodic Lease
• According to s. 79(1) of the Land Act a lease is a periodic lease
if made as follows:
–Where the term of the lease is not
specified and no provision is made for
giving of notice to terminate the
tenancy;
–Where the term is from week to week,
month to month, year to year or any
other periodic basis;
Cont.
• Where the lessee remains in possession
of the land with the consent of the lessor
after a term of the lease has expired; and
• Where a landowner permits exclusive
occupation of the land or part of it by a
person for rent but without agreement in
writing, that occupation shall be deemed
to constitute a periodic tenancy.
Cont.
Short-term Lease
• Short-term leases are created under section 80 of the Land
Act.
• Short-term leases include:
• a lease made for a term of one year or less;
• a periodic tenancy for periods of one year or less;
• an exclusive possession of land or part of it at a rent without any
agreement in writing.
Cont.
• A short-term lease may be made orally or in writing {see s.
80(2) of the Land Act, Cap. 113 R.E. 2002} and does not create
registrable interest in land; {see s. 80(3) of the Land Act, Cap.
113 R.E. 2002}.
Cont.
Future Lease
• Future lease is a lease made for a term to begin on a future
date not being later than 21 years from the date on which the
lease is executed (s. 83 (1) and (2) of the Land Act and s. 55 of
the Land Registration Act).
• If the commencement of a lease is more than 5 years such a
lease must be registered as an encumbrance in the land out of
which it has been created.
Cont.
A Lease Terminating at the Occurrence of a Future Event
• Provides for its termination or permits notice of its
termination to be given on the occurrence of a future event.
• The future event must be capable of sufficient definition in the
lease so that it can be identified when it occurs (s. 81 of the
Land Act).
Cont.
Tenancy at Will
• It is created where the tenant, with the consent of the
landlord, occupies the land qua tenant on terms that
either party may determine the tenancy at any time,
and that the tenant may occupy the premises at rent
free.
• A person possessing the property of another without
being required to make periodic rent payments is a
tenant at will.
• If tenancy at will is created and rent is subsequently
paid and accepted upon some regular periodical basis
(e.g. yearly, monthly or weekly) then a periodic
tenancy will be created.
Cont.
• Tenancy at will is created expressly or by implication. Creation
of tenancy at will by implication include:
– where a tenant holds over with the consent of the landlord and
pays rent irregularly;
– where a tenant is allowed rent free and indefinite occupation of
landlord’s house.
• Tenant’s possession in the above cases must not arise by
virtue of his being landlord’s agent or servant.
Cont.
Tenancy at Sufferance
• Arises where a tenant, having entered upon land under a valid
tenancy, holds over when tenancy terminates without the
landlord’s assent or dissent.
• Such a tenant differs from a trespasser in that his original
entry was lawful, and from a tenant at will in that his tenancy
exists without consent of the landlord.
Cont.
Service Tenancy
• Service tenancy is created when one occupies premises
provided by his employer.
• To determine whether service tenancy exists, one needs to
establish whether the tenant pays rent directly or indirectly by
having a certain amount of rent being deducted from his
salary.
• A service tenant differs from a service occupant, i.e. a person
who occupies the premises of his employer for the easy
carrying out of his work (for example, members of defence
forces who live in quarters).
Cont.

• A service tenant does not enjoy the exclusive possession of

the premises against the employer. He is regarded as a mere
licensee and his tenancy over the premises ceases
immediately when the tenant’s employment ceases.
Implied Obligations of a
Lessor
• Covenant for quiet enjoyment
• Lesee is entitled to peacefully and quietly possess and enjoy the
land leased, provided that he pays rent, observes and performs
other obligations as may be imposed upon him by law or lease
agreement. The landlord, or any persons claiming under him, is
obliged not to interfere with this right unless there are good
reasons to do so.
Cont.
• The covenant covers all conducts which interfere with the
tenant’s freedom of action in exercising his rights as tenant.
Examples of violation of covenant for quiet enjoyment include
unlawful eviction, harassment, lessee removing or threatening to
remove windows and doors of the leased premises, cutting
essential services such as water, electricity, toilet facilities for
purposes of compelling tenant to vacate (s. 88(1)(a) Cap. 113 and
s. 56(2) Cap. 334).
Cont.
• Covenant for non-derogation from the grant
– Lessor must not do any act which is inconsistent with the
objective of the lease. A grantor may not derogate from his grant,
i.e. not to act so as to make difficult the use of that which has
been granted; particularly where the property is rendered unfit
or materially less fit to be used for the purpose for which it was
intended. Landlord should not permit any adjoining or
neighbouring land to which he is the occupier or lessee, to be
used in a manner that defeats the purpose for which the lease
was granted [s. 88(1)(b)].
Cont.
• Covenant to repair building
• Where only part of the building is leased, the landlord will have
an obligation to ensure that the leased property is in a ‘proper
state of repair’. For instance, he must keep the roof, all external
and main walls and main drains, common parts and common
installations and common facilities including common passages
and walkways in a proper state of repair [s. 88(1)(c)].
Cont.
• This means the landlord has no primary obligation to effect
repairs where the lease is made to the whole of the building. The
duty to repair, however, may arise depending on the nature of
repair. The law allows the landlord, at reasonable time, to enter
personally or by agent the leased premises for the purposes of
inspecting their condition and repair and carry out repairs or
making good defects [s. 88(2)(a)].
Cont.
• Fitness for human habitation covenant

– The covenant requires the landlord of a dwelling house, flat or

room to keep it fit for human habitation at the start and
throughout the lease [see s. 88(1)(d) of the Land Act Cap. 113
R.E. 2002].
– The law gives the primary responsibility of ensuring that the
premises are fit for habitation, at the commencement of the
lease, to the landlord. Anything to the contrary needs to be
expressly stated in the contract of lease.
Cont.
• Covenant to render the premises fit for occupation and use
• In the event the leased premises or any part of it is destroyed or
damaged by civil commotion, natural disaster (i.e. earth quake,
flood, lightning, explosion, or other accidents not resulting from
human negligence of the tenant or invitees or employees, the
landlord is required to repair and make the premises fit for use
and occupation.
Cont.
• If the property is damaged to the extent that it is unfit for
occupation or use, the tenant can suspend paying rent and any
contribution payable by him or a just proportion of the rent/
contribution until the premises is rendered fit for occupation and
use.
• If the premises have not been made fit within six months of their
destruction or damage the tenant may at his option and upon a
one month notice terminate the lease [s. 88(2)(e) Cap. 113]
Cont.
• To pay all rates, taxes, dues, and other outgoings payable in
respect of the land leased
• See section 88(1)(g) of the Land Act Cap. 113 R.E. 2002.
Implied Obligations of
Lessee
• Covenant to pay rent
–Obligation to pay rent is an implied
covenant under s. 89(1) of the Land Act.
Tenant has to pay rent at the time and in
the manner specified in the lease. The
time and manner of payment of rent is
to be ascertained according to the true
construction of the contract. If no
provision to the contrary, rent is payable
in arrears.
Cont.
• Failure to pay rent will lead to termination of the lease by the
landlord, although he must give notice of intention to terminate
[s. 89(1)(a)].
• Rent payment in Tanzania is determined by market forces, unlike
in the past when it was controlled by the Rent Restriction Act.
Section 15 of the Written Laws (Miscellaneous Amendments) Act,
No. 2 of 2005 stipulates size, use, value, condition and location of
the property as some of the factors to be considered in
determining rent payable.
Cont.
• Not to commit waste
• The lessee is obliged to use the land in a sustainable manner and
according to conditions imposed by the lease or right of
occupancy from which the lease was created including not to cut
down, injure or destroy any tree(s) on the land unless the
purpose of the lease cannot be carried out without such acts [s.
89(1)(b) and (c) of the Land Act Cap. 113 R.E. 2002].
Cont.
• To keep the demised premises in a tenant-like manner, i.e. to
keep it in a reasonable state of repair.
• Lessee commits waste if he alters the premises by way of
destruction, damage, addition, improvement or neglect which
injures the reversion.
Cont.
• In Hamid Mbaye v. Brigade Commander [1984] T.L.R. 294 (HC-
Zanzibar), the court found that the defendant had made
several alterations to the leased house where, for example, a
toilet was sealed and turned into a kitchen. The court held
that most of the damages were not from irresistable force but
a result of alterations. The defendant was ordered to pay
damages.
Cont.
• Covenant to permit the lessor to enter to inspect or repair
– Tenant is required to allow the landlord at reasonable times to
enter personally or through agent or employee, to inspect the
condition of the leased premises/land and carry out repairs. In
doing so, however, the landlord must not unreasonably interfere
with the occupation and use of the land/premises demised. He
must also give a reasonable notice [s. 89(1)(g) Cap. 113].
Cont.
• Yield up the land and buildings
• The tenant is required to surrender the land and buildings in the
same condition they were at the beginning of the lease. The
tenant, however, is not bound to repair damage or restore land
and buildings to the condition they were if any deterioration was
caused by reasonable wear and tear (exhaustion out of
reasonable use), natural disaster e.g. earthquake, lightning,
volcanic eruptions,etc, civil commotion.
Cont.
• To repair [buildings]
– The Land Act imposes obligation to repair on both the landlord
and tenant. Where the whole building is leased, the tenant has
the obligation to keep all buildings comprised in the lease in a
reasonable state of repair [s. 89(1)(e) Land Act].
– Also where only part of the building is leased, a lessee has the
obligation to keep the leased part of the building in a reasonable
state of repair subject to obligation of the landlord [s. 89(1)(f)
Land Act].
Cont.
• Not to transfer, mortgage or sub-let without permission
(restraint on alienation)
– At common law a tenant has the right to freely assign or sub-
lease.
– The Land Act, however, makes it an implied covenant restraining
the lessee from transferring, mortgaging, charging, sub-leasing or
otherwise parting with the possession of the demised land or
building without the prior written consent of the lessor [s. 89(1)
(i)]. The consent must not be unreasonably withheld.