TOFF'S RESTAURANT (PVT) LTD v PROMAVEN PROPERTIES (PVT) LTD 1992 (2) ZLR 164 (S)

Flynote

Lease — fixing of fair rental for commercial premises by Rent Board — whether tenant lessee under tacit lease or statutory tenant

Rent Control — Commercial Premises (Rent) Regulations 1983 — s 10 — whether applicable

Headnote

The respondent owned certain premises which had been occupied by the appellant under a lease. In 1990 the respondent applied to the Rent Board to determine and fix a fair rental for the premises. In terms of s 10 of the Commercial Premises (Rent) Regulations 1983, the Rent Board was empowered to fix a fair rental. If the parties had agreed to a rental amount, the Board was to fix this amount as the fair rental, unless there was some justification for altering it. If the parties had not agreed on the amount of rent, the Board was to fix a fair rental based on the lower of two amounts, namely, either the recurrent expenditure plus a reasonable return on value or the open market rental. It fixed the rental on the latter basis because it found that the parties had not agreed on a rental. The appellant maintained that he was in fact occupying the premises under a tacit lease and that under that lease the rent had been agreed at an amount lower than that fixed by the Rent Board. He argued that the rent should have been fixed by the Rent Board on the basis of this lower amount.

Held, that the Rent Board had fixed the rent on the correct basis. There had been a tacit lease but this had expired and no new rent had been agreed.

The tenant had continued in occupancy only as a statutory tenant.

Held, further, that the Rent Board was entitled to rely on the written opinion as to a fair rent by the expert valuer engaged by the respondent in the absence of any evidence to challenge the opinions of that valuer.