Is it possible to evict a guest in Zimbabwe for failing to comply with your house rules?

The demand for short – term stay accommodation in Zimbabwe using online accommodation reservation services i.e., home – sharing platforms has ballooned in recent years. Resultantly, a significant number of houses, flats, apartments, rooms, hotels, motels, inns, guests house, residential establishments, chalets and similar establishments in almost all parts of the country now offer short term stay opportunities to guests.

‘Hosts’ as they are commonly known in tourism industry generally charge guests a daily, weekly or monthly charge for lodgement (or residence) at establishments i.e., bed – and breakfast (B&B). Most online accommodation reservation services, travel agencies and / or marketplaces (home – sharing platforms) that connect people who want accommodation (flights, transportation, and activities) have standard rules. In respect to houses, flats and apartments these are known as ‘house rules.’

Due to the fact that the common law in Zimbabwe draws a distinction between a “contract of letting and hiring” and that of “boarding and lodging”, a guest in a B&B establishment in Zimbabwe is not regarded as a ‘tenant’ but as a lodger. Thus, if a “lodger” fails to follow house rules, and is a nuisance, he or she can be evicted from the house, flat, apartment, room, hotel, motel, inn or guest house.

Is it possible in Zimbabwe for a ‘Host’ to Evict a Guest who has overstayed?

The tourism and leisure industry in the country contributes significantly towards Zimbabwe’s economy. The tourism and leisure law that generally applies to inn-keepers, hoteliers and restauranteurs in South Africa, and England and Wales appears to be the same as that which applies in Zimbabwe.

The law concerning hotel-keepers (hotel owners) or inn-keepers (as they were traditionally called) in South Africa is the same as that applying in Zimbabwe. For a start, this means that any person who is booked as a guest in a house, flat, apartment, room, hotel, motel, inn, guest house, boarding house, residential establishment, holiday accommodation unit, chalet, tent, caravan, camping site, houseboat, or similar establishment in Zimbabwe or any part of Zimbabwe is not regarded by the law to be a ‘tenant’ but is regarded by law as a ‘lodger’.

It goes without saying that there is ordinarily no contract of letting and hiring between a proprietor of inns, restaurants, and lodging houses i.e., landlord and tenant agreement. The agreement between a landlord and tenant is distinct from that of a guest and an hotel owner or inn-keeper. see Rent Control Board & Another v Beach Villas (Pty) Ltd 1944 AD 16.

In terms of the common law applicable in Zimbabwe, a lodger does not have exclusive occupation of the premises. The contract of board and loading is regarded as a contract of a special nature. Resultantly, a guest / lodger is regarded by law as anyone who occupies a room in a house, flat, apartment, hotel, guesthouse, houseboat which room he / she retains control over.

It follows that in terms of the common law in Zimbabwe a lodger is not a tenant, and consequently a lodger / guest is not and will not be protected by the tenancy laws in Zimbabwe. Put differently, the tenancy laws in Zimbabwe do not apply to ‘guests’ booked in bed and breakfasts (B&Bs), hotels, guest houses. It is thus permissible to have the guests ‘evicted’ if and when they overstay. It is a settled position of our law that no one has the ‘right to remain for an indefinite time in the absence of special agreement.’ see Lomax v Killarney of Durban (Pty) Ltd 1961 (2) SA 573 (N).

Dealing with errant B&B guests who fail to comply with your house rules?

It is important to know that the common law on boarding and lodging is evolving. Hotel owners or innkeepers (as they were traditionally called) enter into unique or special contracts with their customers / guests. The relationship is thus contractual in nature.

It therefore follows that where a B&B has house rules, a guest has an obligation to follow those house rules / regulations. It would be unfair for a host to turn a B&B guest to the street for any other reason. There has to be a good reason i.e., a lawful cause.

To be able to successfully to turn out an errant B&B guest who has failed to comply with house rules, it is important to have the rules / regulations in written form and / or in the form of a contract (hard copy or electronic) so as to minimize disagreements. Furthermore, the host must be able to demonstrate that the guest has breached the agreement i.e., violated a house rule.

This means that a host must have a valid and / or legal reason before he / she decides to take action against an errant B&B guest. For example, a host cannot eject a guest from his / her B&B in Zimbabwe on the reasoning that the guest lives an immoral life. It has to be shown that the guest has caused a disturbance to others, has become a nuisance or has caused the host patrimonial loss. Simply put, there has to be a lawful cause.

In the famous case of Bennet v Shaw (1902) 19 SC 248 at 249 – 250, it was held that:

“The case is, therefore, one of the traveller coming to a hotel, engaging a room, and being shown into a room. In my opinion, whatever the civil law may be in regard to the liability of the hotel – keeper who refuses to give any room at law, that law is not applicable to the present case, because the plaintiff had engaged a room, and, in my opinion, he was entitled to remain in that hotel so long as he behaved himself, and so long as there were no reasons of necessity why he should be turned out of the premises. The plaintiff alleges that the defendant is a hotel – keeper, and this allegation is not denied by the defendant. We may take it, therefore, that he is an inn- keeper or a hotel – keeper, and I am of the opinion that by our law once a traveller engages a room the hotel – keeper is not justified in turning him out of the premises without lawful cause.

In the growing market on short term rentals and the rise of B&Bs in Zimbabwe, it does often happen, as it does in other jurisdictions, that hosts encounter challenges with guests who overstay and refuse to vacate their premises. The rights and duties of a host to accommodate a guest in a B&B in Zimbabwe are not for an indefinite period. Resultantly, a guest has no right to remain for an indefinite period of time or to overstay (absent a special arrangement). It is thus a contravention of most B&B house rules for a guest to overstay (absent special agreements) and refuse to vacate. see Jockie v Meyer 1945 AD 354.

What can I do if a guest won’t leave?

If a guest won’t leave your apartment, chalet, camping site, cottage, flat, houseboat, hotel, inn, guest house, motel, room or similar establishment, it is advisable for you to immediately obtain legal advice from a duly registered legal practitioner. It is also advisable to contact Zimbabwe Republic Police (‘ZRP’).

It is important however to note that in terms of the common law in Zimbabwe, there is no contract of letting or hiring that exists between a proprietor of a bed and breakfast (‘B&B’) or short term stay accommodation provider. There is a special contract of boarding and lodging in terms of which the guest is entitled to stay at the ‘residence’ in terms of the special contract.

Accordingly, a guest who checks into an establishment in Zimbabwe is not and cannot be regarded as a tenant, but rather a lodger. Thus, the law relating to landlord and tenant rights and obligations will not apply. Instead, the common law of board and lodging applies. It would be advisable therefore to contact an experienced legal practitioner with knowledge on the law of board and lodging and / or travel and hospitality. This could be in the form of a physical or virtual consultation. It is also possible to obtain a legal opinion which will guide you through the entire process.

What can I do if a customer or guest makes off without payment?

Section 117 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) deals with situations concerning people who make off without payment. In terms of the said section, it is considered a crime for any person in Zimbabwe to benefit from the provision of a service or to consumer goods, knowing that payment is required or expected, and to intentionally make off i.e., take off without paying for the services or goods.

Inn-keepers, hoteliers and restaurants often fall victim to people who make off without paying for services rendered. Not only does it happen to the above, it also happens to owners of shops and hardware shops. The case of Mahachi v The State HH 446-13 is a classic case which dealt with the crime of “making off without payment”. In that case the accused was found guilty of the crime of making off without payment, as he had taken wood glue, hid it in his trousers, and walked out of the hardware store without paying for it.

Although the crime seems petty or trivial, cases of people making off without payment are on the increase and do often arise. The famous case of R v Brooks & Brookers (1983) 76 Cr App R 66 is one case that dealt with the crime of making off without payment from a restaurant.

The crime of making off without payment in terms of section 117 of the Code is not limited to goods only, but also services received in terms of which a payment is required or expected, and someone dishonestly makes off without paying as required or expected, with the intention of avoiding payment on the spot. It can occur to owners of hardware stores and / or liquor stores. It can also happen to inn-keepers, hoteliers and restaurateurs.

R v Aziz [1993] Crim LR 708 (CA) is a famous case of making off involving someone who had hired the services of a taxi, boarded the taxi and arrived and his destination and failed, refused or neglected to pay. Nowadays, it appears that the crime of making off as envisaged in section 117 of the Code in Zimbabwe has largely affected local taxi drivers.

It is thus important for service providers to know the law. Whether one is a taxi driver, a hairdresser, inn-keeper or restaurateur, is it advisable to put in place adequate payment mechanisms so as to limit and / or reduce incidents of customers or guests making off without paying. It is equally important, to report the matter to the Zimbabwe Republic Police (‘ZRP’) as well as to contract a legal practitioner i.e., to obtain legal advice from a duly registered legal practitioner and / or reputable law firm.

Thinking of listing a property in Zimbabwe as a Bed and Breakfast (B&B)?

It is important for both guests and hosts to know their rights. There are various things that guests and hosts should be aware of, such as the nature of the contract i.e., the terms of and conditions offered by home – sharing services that provide an online marketplace for short- and long-term lodging.

It is also important for people considering listing their properties in Zimbabwe as bed and breakfast (B&B) establishments on any of the home – sharing services / online platform, to know that such platforms do not ordinarily offer their own real estate, rather they act as middle men or commercial brokers and receive a commission for the transactions executed on their online platforms. For instance, to use these online short and long term stay online services, whether as a guest or a host, an individual has to register as a member.

By registering as a member, whether as a guest or a host, one accepts the various terms and conditions of the online accommodation service provider. It is important to know and understand the terms and conditions that members sign up to. For instance, the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded from most agreements. Furthermore, and more often than not, disputes are resolved by way of arbitration.

Before you decide to sign up and / or list your Zimbabwean property as a B&B on any of the leading home – sharing services / platforms, be sure to know how disputes, claims or controversies arising out of or relating to your Listing, including issues of interpretation, breach or termination are settled and the means by which such disputes are settled together with information on the jurisdictions in which such disputes are settled.

There are other issues that (potential) hosts should be area of, such as property management, health and safety i.e., risk mitigation and insurance. Other issues include data protection, privacy, tourism and hospitality regulations, zoning regulations and tax. Therefore, before you list a property as a Bed and Breakfast (B&B) establishment it is advisable to obtain legal advice from a duly registered legal practitioner and / or reputable law firm.