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What You Need to Know about the Deferral of Rental Mortgage During Lockdown

On 29th April 2020, the President of Zimbabwe issued the Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020[1] on account that the national lockdown had put many people on forced leave from employment and therefore the people were unable to pay for their rentals and mortgage payment for residential accommodation. The law therefore affects banks (as mortgage lenders) and property owners such pensioners among others. 

Scope of the Regulations

Section 3 (1) of the Regulations is abundantly clear that the Regulations apply to rented accommodation for residential purposes only.[2]

This distinction is quite problematic as it discriminates the rights of property owners. Particularly in that, it freezes the rights of a residential property owner whereas the rights of a commercial property owner are not fettered with. This can be constitutionally challenged as all property owners must all be equally protected under the law.[3]

Further, the Regulations discriminate against the rights of private owners of residential property, particularly in that they do not apply to other institutions within government’s own control which provide basic provisions such as water, electricity, rates and levies amongst others which are critical during the national lockdown.

Nature of the Regulations

The Regulations are deferral in nature and do not take away any rights of the residential property owner. They merely freeze the rights of the residential property owner to collect rentals during the national lockdown. The Regulations also freezes the legal mechanisms available to a property owner to recover rentals or institute eviction/ejectment proceedings against the tenant/mortgagor.[4]  In other words, the residential property owner will still be entitled to receive their rentals in full but after the national lockdown and in instalments. At no stage, are rights expropriated.

Rights of tenants/ mortgagors

The Regulations provide that a person occupying rented accommodation for residential purposes is granted a deferral of the obligation to pay rentals during the national lockdown.[5] This means that a tenant/mortgagor is not obligated to pay any rentals or mortgage payments within the duration of the lockdown period. It is important to note that the tenant/mortgagor is not relieved from his duty to pay the rent, but that the duty to pay is deferred or suspended to a later time, that is, after the national lockdown period.

Further, during the national lockdown period, the rentals being paid by the tenant/mortgagor shall not be increased and the property owner shall not have the right to keep possession of the tenant/mortgagor’s property as lien for the recovery of rent/mortgage payment during the national lockdown.[6]

Be that as it may, a tenant/mortgagor is still free to pay in full or to the extent that the tenant is able to pay during the national lockdown.[7] This means that if the tenant/mortgagor has the rentals/mortgage payments in full, the tenant/mortgagor can pay the rentals/mortgage payments as they used to do. However, if the tenant/mortgagor has insufficient money or no money at all to pay for the rentals/mortgage payments, the Regulations shall apply and defer payment of any such rentals/mortgage payments or the balance of the rentals/mortgage payments until after the national lockdown. If a tenant/mortgagor is unable to pay rentals/mortgage payments in full or to the extent of their ability during the national lockdown, the tenant/mortgagor shall be presumed unable to do so because of the national lockdown whether because of the inability to earn or receive income or sufficient income or otherwise.[8]

Rights of property owners

The property owners are still entitled to receive their rentals/mortgagor payments in full. However, if their tenant/mortgagor is unable to do so or only able to raise part of the rentals/mortgage payment, then the property owner will only be able to recover any such arrears or balance after the national lockdown and in instalments.

In fact, a property owner cannot institute any legal proceedings for payment of rent, eviction/ejectment/recovery of the land or premises or any such damages claimable which fall due during the national lockdown.[9] The property owner will only be able to claim for such until after the national lockdown. In any event, the Practice Direction issued by the Chief Justice suspends the filing of new cases, all processes and pleadings, save for urgent matters only, therefore the property owner will still not be able to enforce its rights.[10]

A serious omission in the regulations is with regards to the issue of payment of rates and other levies on the property. Other service providers such as local authorities are still entitled to demand payment. This leaves the landlords with a burden of unpaid rates and other levies on their properties.

What happens after the national lockdown?

After the national lockdown, the tenant/mortgagor shall begin to pay their rentals/mortgage payments in full as they used to do before the national lockdown period.

In addition to paying normal rentals/mortgage payments, the deferred rentals/mortgage payments shall be paid by every tenant/mortgagor. The payments shall be without any deduction from the rental/mortgage payment deferred and shall be payable in 3 equal monthly instalments for each month’s rental deferral as illustrated by the table below:[11]

DURATION OF LOCKDOWN  EQUAL MONTHLY INSTALMENTS
   
1 month 3
2 months 6
3 months 9

From the table above, if the tenant/mortgagor is one month in arrears, after the national lockdown, the tenant/mortgagor shall pay that rental/mortgage payment in 3 equal monthly instalments plus the full month’s rentals/mortgage payment. If it is 2 months’ arrears, then 6 equal monthly instalments and so forth.

If a tenant/mortgagor fails to pay instalment of deferred rental within 14 days from which the payment is due, the protection previously enjoyed by the tenant/mortgagor falls away and the tenant/mortgagor can have litigation initiated against them.[12]

Challenges arising from regulations

Although the Regulations have been enacted to cushion the livelihood of the public during the COVID- 19 national lockdown, the Regulations may be challenged constitutionally on the basis that they unfairly discriminate against the rights of residential property owners by treating favourably.

In terms of the law, presidential powers have to be exercised in the interests of the people of Zimbabwe as a whole (Mlilo v The President of the Republic of Zimbabwe HH 236/18). However, this may not be the case as owners of residential properties do not enjoy similar rights to receive rentals from tenants as opposed to commercial property owners. Further, in terms of section 86 of the Constitution; any limitation of rights should be fair and reasonable.  

If you need assistance in a legal issue, please contact us.


[1] SI 96/2020 hereinafter “the Regulations” as read with section 2 of the the Presidential Powers (Temporary Measures) Act [Chapter 10:20]

[2] Section 3 (5) of Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020

[3] Section 56 (1) as read with section 71 (2) of the Constitution of Zimbabwe (Amendment No. 20) Act, 2013

[4] Section 3 (1) as read with 4 (1) of the Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020

[5] Section 3 (1) (a) of the Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020

[6] Section 3 (4) of the Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020

[7] Section 3 (2) (a) of the Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020

[8] Section 3 (2) (b) of the Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020

[9] Section 3 (1) (b) of the Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020

[10] Practice Direction 1/2020 as amended by Practice Direction 2/2020

[11] Section 5 (2) and (3) as read with 6 (2) and (3) of the Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020

[12] Section 5 (4) of the Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020