PEDZISA v CHIKONYORA 1992 (2) ZLR 445 (S)

Flynote

Property law — lease — to — buy — whether lessee — to — buy has locus standi to sue for eviction of person in occupation without cession of action from the D registered owner — lessor — whether lessee — to — buy acquires a personal or a real right

Headnote

The respondent had entered into an agreement to "purchase" on a lease-to-buy basis from the owner-lessor a plot of land with an incomplete dwelling house. Under the agreement, title to this property would only pass to the respondent after certain conditions had been met. These conditions had not yet been fulfilled. One of the terms of the agreement was that the lessee-to-buy was prohibited from sub-leasing or assigning the property to a third party without the written consent of the owner-lessor. After the agreement had been entered into, the respondent did not move into the house, as he had somewhere else to live. Thereafter he either sub-let this property to the appellant or assigned the property to him by selling to him his right of occupation together with the eventual right to take title. The respondent did this without first obtaining the consent of the owner-lessor to this sub-letting or assignment. Some time later, the respondent brought an action for the eviction of the appellant from the premises. The main issue on appeal was whether the lessee-to-buy had locus standi to sue to evict the appellant without having obtained a cession of action from the owner-lessor.

Held, that the terms of the lease-to-buy agreement were such that the lessee initially acquired only a personal right exercisable against the owner-lessor and not against third parties without recourse to the owner-lessor.

This personal right entitled him to delivery of vacant possession of theproperty from the owner-lessor. But once the lessee had been given vacant possession of the property and had assumed physical control over it, he then acquired a real right entitling him to evict anyone who wrongfully occupied the property such as a trespasser. Although the respondent had not actually moved into the house, he had acquired control over the unoccupied property. He had thus acquired a real right over the property.

Held, therefore, that the respondent had locus standi to sue for the eviction of the appellant, even though he had not obtained a cession of action from the registered owner-lessor.

Held, further, that the fact that the respondent had entered into the agreement with the appellant in breach of the clause in the lease-to-buy contract requiring the prior consent of the owner-lessor to subletting or assignment did not preclude the respondent for suing for eviction of the appellant. In effect, the respondent was seeking to undo the sub-lease or assignment entered into in breach of the clause the lease-to-buy agreement. The in pari delicto rule applied to an illegal sub-lease; it did not apply to a sub-lease invalid on account of lack of compliance with formal requirement. The purported sub-lease or assignment was not illegal; it was invalid because of the failure of the parties to the agreement to obtain the necessary prior consent. This was a matter of contractual formality. A lessee in occupation under a lease that is invalid due to its form may be evicted by the lessor; so, too, a sub-lessee in occupation under a sub-lease which is invalid due to its form may be evicted by the lessee. If the sub-lessee is ignorant of the defect in the lessee's title at the time he contracts, his remedy is to claim damages for the disturbance in the use and enjoyment of the property.

Held, therefore, that the court a quo was right in ordering the eviction of the appellant from the property.