Lessee of residence must remove all belongings Lessors remedies If property is

Lessee of residence must remove all belongings

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Lessee of residence must remove all belongings. Lessor’s remedies If property is not returned in same condition : Specific performance and damages: Lessor has a CHOICE between. 1) Granting of Specific Performance: 1) At court’s discretion – Not always possible 2) Court’s will not grant where: (1) Order holds few advantages for the lessor BUT (2) Large costs for lessee (a) i.e damaged building is going to be demolished anyway after lease. 2) Granting of Damage: 1) Onus of proving Damage to property was NOT caused by lessee OR by persons lessee is responsible = rests on the lessee. 2) Lessee proves onus cannot be held liable for damage 3) If reasonably could have prevented the damage (taking greater care) he is liable. 3) If leased property is NOT returned at all: Eviction. 1) Immovables lessor can obtain eviction order. (1) May NOT take the law into his own hands forcibly eject lessee (even if contract invests him with this right) (2) Lessor is not entitled to rent for period of wrongful occupation can claim damages from lessee. 2) Common law eviction order: Quick, simple procedure (1) Owner proves ownership + lessee in occupation (holding over) (2) Onus shifts to lessee to prove why he may remain in possession 18
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(3) If owner admits previous right of occupation , he must show relationship = terminated (e.g lease come to end) 3) Sec 26(3) of Constitution + Prevention of Illegal Evictions from Unlawful Occupation of Land Act applicable to evictions upon termination of lease. (1) Effect court before ordering lessee evicted = has to adhere to s26(3) = person may not be evicted before all relevant circumstances are taken into account. (2) Acts applicable: procedures for eviction laid down in Acts have to be followed. 4) Property returned in damaged condition lessor cannot refuse to receive thing. 1) Only remedy = Claim for damages. (1) Calculated Value of property if it were to have been delivered in a property condition (MINUS) Value of property at end of term of lease. See Swart case. Swart v Van der Vyver: Calculation of damages – thing leased returned in improper condition. Mere breach – does not necessarily result in claim for damages. Must be proved that damage was actually suffered. Yardstick: difference value of thing as it & value after repair or maintenance. 1) General rule: Reasonable costs of repair/ maintenance = indication of difference in value 2) Lessor would necessarily & without exception be entitled to such costs. BUT: not hard and fast rule: Not absolute or only norm for calculation of damages. 1) Sometimes: No link btw costs of repair/ maintenance and damages actually suffered. 1) IF application of general rule leads to inequitable results actual damages suffered may be claimed. 2) In some cases costs of repaid/ maintenance can be used to calculate damages actually suffered. In casu: held costs of repair/ maintenance not reliable indication of damages actually suffered. When does lessor have claim for damages? Only has claim once lease agreement terminated - NOT during term of lease agreement.
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  • Fall '17
  • S van wyk

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