Andrew
Part 11
The previous article introduced a conversation on the obligations of the lessee. Three broad obligations on the part of a lessee were raised. For purposes of refreshment of memory, these are:
To pay rent;
To take proper care of the property and use it only for the purpose for which it was let; and
To restore the property on termination of the lease in the same good order and condition as it was when it was received
We discussed the first two and the final one is outstanding. The third obligation is what we are going to be looking at in this instalment, which is to restore the property on termination of the lease in the same good order and condition as it was when it was received.
The contract is of a temporary nature, and the lessee has a duty to restore the thing to the lessor on the termination of the lease. Restoration means complete restoration of the use and enjoyment initially received, less fair wear and tear.
Where the lessee does not vacate and restore the property on the due date, he or she is in mora and is said to be holding over. The lessee is under obligation to move from the premises on time.
The lessee must restore vacant possession back to the lessor. This means the lessee must remove all his goods, as well as those of any other person that are at the premises.
The obligation technically requires the premises to be restored unaltered. Any improvements or changes would, therefore, technically have to be removed.
Issues of compensation for any improvement is usually governed in terms of the lease. However, pragmatically speaking, the lessor may be happy with the alterations, and may be prepared to compensate the lessee for putting these in place. In other instances, lease agreements do not provide for compensation for improvements.
The lessee must repair and replace anything that is damaged, or compensate the lessor for any damage that has been done to the property. He or she is also responsible for any damage caused by anyone else, for whom he or she is responsible.
The lessee is not responsible for any loss caused by fair wear and tear. For example, peeling paintwork, weathered doors, corroded hot-water pipes or any damage caused by vis maior (for example, hail/lightening).
A property is susceptible to the forces of nature, hence this obligation. A lessor cannot expect a renovation of the house disguised as a “restoration”. The lessee is also not responsible for destruction or theft of the thing let as long as these acts cannot be attributed to his negligence.
Remedies
If the lessee returns the leased thing in a damaged condition, the lessor has a claim in damages to remedy the condition of the property and/or loss occasioned by the person refusing to vacate the premises (lost rent etc).
The lessor is also entitled to eject a lessee who refuses to give up occupation. Particular aspects of these remedies require further discussion.
Specific performance in the
form of ejectment
The lessor has a claim for the lessee’s ejectment. The claim will be based on the contractual obligation of the lessee to restore possession. There is no scope for self-help in terms of the law. A lessor who wishes to eject a lessee who is “holding over” needs to apply to court for such ejectment using the procedures set out in terms of the law.
The lessee is under obligation to compensate the lessor for the lessee’s failure to restore the thing let at the proper time. In these circumstances, the lessor may recover the following in damages:
The value of the use and enjoyment of the leased property for the period, if any, between the date on which the lease ended and the date on which the lessee actually left the leased property;
What the lessor has had to disburse; and
His loss of profit.
There is considerable controversy on the issue of whether or not “rent” in lieu of damages may be claimed for the period held over.
Applying ordinary contractual principles, rent is an agreed quid pro quo for the use and enjoyment contracted for and cannot be claimed for a period held over for which there was necessarily no contract.
This is a discussion for another day. I hope this conversation has helped shed some light on the obligations of the lessee.
LEGAL DISCLAIMER: The material contained in this article is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. It is not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expenses incurred as a result of relying in particular circumstances on statements made in the article. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements. For legal advice, you should consult with an attorney concerning your specific situation.
Arthur Marara is a corporate law attorney. He has specialised in employment law matters, having worked with corporates, trade unions, and individuals in their labour matters.
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