oa Fundamina : A Journal of Legal History - The nature of the claim for holding over : an historical analysis
A lessee, who upon termination of the lease intentionally and unlawfully remains in possession of the leased property and fails to return it to the lessor, is said to hold over. Although it has recently been held that holding over applies also to mortgagors who continue to occupy their property after the mortgage bond has been called up and the property sold in execution, this paper investigates only holding over by a lessee. In terms of South African common law, the lessor was entitled to an ejectment order. However, today eviction is regulated by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act which introduced requirements that have resulted in eviction becoming a lengthy process and which, consequently, emphasises the lessor's remedies.
It is common cause that the lessor is entitled to a claim for holding over, but the nature of such a claim has been problematic and remains unresolved. The leading academic authorities on lease hold differing opinions.
Kerr is of the view that the lessor is entitled to recover, first, the value of the use and enjoyment of the premises for the period between the date on which the lease terminated and the date on which the lessee actually vacated the premises; secondly, what she has had to disburse; and thirdly, her loss of profit. In his opinion the correct basis of the lessor's claim is one for breach of contract since she claims damages for the lessee's breach of her obligation to restore the property on the termination of the contract of lease.
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