Scotland

As a lease is a contract, normal contractual remedies are available to the landlord to control the tenant’s behaviour if it is not in compliance with the obligations under the lease. These include a decree of specific implement (an order compelling performance of a positive obligation), a decree of interdict (an order prohibiting conduct of a particular nature), a decree for payment or an action for damages (the primary measurement being such amount as will put the landlord into the position that he/she would have been in had the tenant performed his/her part of the contract).39 If, for example, the tenant is using the premises for a purpose prohibited by the lease, an interdict will be available to the landlord provided that there is a reasonable apprehension that the wrong will continue were that order not to be granted. A party is entitled to specific implement as of right and not as a matter of the court’s discretion (subject to there being certain types of obligations which courts will routinely not enforce by implement). Implement will not, however, be granted after the lease has come to an end to require the tenant to do something which he/she was obliged to do during the lease (for example, to put the premises into a good state of repair).40

Leases will commonly also contain an irritancy clause.41 Irritancy is a right to bring the lease to an end on the occurrence of a certain event, which need not be a breach of contract. It can be enforced only by court action. There are both legal irritancies (implied by law) and conventional irritancies (provided for by the parties themselves). At common law, the only legal irritancy was non-payment of rent for two years. Conventional irritancies are obviously more important. Any term of the lease can be made the subject of a conventional irritancy. One would certainly expect to see the obligation to pay rent and the alienation provisions included, and also provision made for the lease to terminate in the event of the tenant’s insolvency. Irritancy in an assured tenancy (of residential property) will only be effective if it mirrors certain statutory grounds for terminating the tenancy.42 In respect of agricultural

39See, generally, McBryde, Contract, chs. 20, 22, 23.

40Sinclair v. Caithness Flagstone Co. (1898) 25 R 703 (IH) 706; PIK Facilities Ltd. v. Shell UK Ltd.

2005 SCLR 958 (OH).

41Rankine, Leases, ch. 20, pt. 3; Paton and Cameron, Landlord and Tenant, ch. 15; McAllister, Leases, paras. 5.2–5.38.

42Because an order for possession may only be made if one of the statutory grounds for possession is made out: H(S)A 88, s. 18. If, at the time the proceedings commence, rent is

358 c a s e s t u d i e s

holdings, there are no controls over irritancy clauses in a 1991 Act tenancy.43 The provision is slightly more controlled in respect of SLDTs and LDTs,44 but the regime is still fairly liberal.

Generally, Scots contract law allows the ‘innocent’ party faced with a material breach of contract to terminate the contract (‘rescind’).45 If faced by a material breach of contract by the tenant,46 the landlord can elect to rescind the contract, which brings it to an end from that point on, and claim damages, or affirm the contract, in which case the right to rescind is lost. There are uncertainties about the circumstances in which this remedy is available to the landlord, standing the existence of irritancy.47 It cannot in any event be used to circumvent statutory rules about termination and the recovery of possession.

In the case of liferent, A’s remedies are more limited.48 During the subsistence of the liferent, the fiar’s remedy is the cautio usufructuaria. The liferenter may be required to give caution (a payment guaranteeing performance of his/her obligations) to the fiar against damage to the property by waste and destruction, but probably only in the case of actual or likely damage.49 The fiar cannot obtain an order while the liferent subsists compelling the liferenter to comply with his/her duties, or obtain an award of damages, except in respect of those parts of the property in which the fiar has a ‘present beneficial interest’, such as the woods and minerals. The logic is that any damage can be made good at termination of the liferent. The Inner House has recently confirmed that this is the position50 and, although Gordon51 describes the decision as ‘unconvincing’, it does reflect the authorities.

at least three months in arrears, the sheriff must grant an order (Schedule 5 Ground 8). For other breaches, the sheriff has a discretion whether to grant an order for possession (Grounds 12–16).

43AH(S)A 1991, s. 21(6). Even if the lease is silent, the landlord can seek to have the tenant removed if six months’ rent is due and unpaid (AH(S)A 91, s. 20).

44AH(S)A 2003, s. 18(1). 45 McBryde, Contract, paras. 20–88 to 20–127.

46Non-payment of rent does not count as material (Gloag, Contract, p. 618), nor does unauthorised sub-letting or assignation (Rankine, Leases, 180), although in both cases it is open for the parties to provide otherwise.

47Hogg, ‘To Irritate or to Rescind’, 1; McAllister, Leases, paras. 4.22–4.28.

48Gordon and Wortley, Land Law, para. 17–60; Styles, ‘Liferent’, para. 1660–1.

49Gordon and Wortley, Land Law, para. 17–60, citing Ralston v. Leitch (1803) Hume, p. 293.

50StronachÕs Exrs v. Robertson 2002 SC 540 (IH). The court held that a fiar could not obtain an order of specific implement against a liferenter to compel him/her to perform his/her duty to carry out repairs.

51Gordon and Wortley, Land Law, para. 17–60.

South Africa

Under a lease, a landlord is entitled to an interdict restraining the tenant from using premises for a purpose for which they are not let,52 using them improperly53 or damaging or altering them.54 If the tenant neglects a positive duty (for example, to erect a fence on a farm), the landlord may apply for an order for specific performance.55 If damage can be proved, an action for damages will be available.56

In the case of a major breach, the landlord may cancel the lease and eject the tenant (claiming damages for past misuse). Factors such as the seriousness of the breach, whether it was progressive or whether the landlord is threatened with irreparable loss will be considered.57 In the case of a minor breach such as causing damage, repairable at small cost, or improper use of the property on an isolated occasion, the landlord will not be entitled, prior to termination of the lease, to recover the damages in lieu of insisting on repairs. At termination, the tenant must return the property in the same condition he/she received it, fair wear and tear excepted.58 Consequently, an award of damages before termination will compel the tenant unjustifiably either to restore doubly or before the required time has arrived.59

If the tenant60 has caused material damage, the landlord can, in addition to bringing the contract to an end, institute an action for damages to recover the reasonable cost of repairs or restoration.61 The damage sought is restricted to actual patrimonial loss, namely the difference between the actual value of the premises on termination of the lease and what their value would have been had the tenant restored the property in its proper condition. Although the reasonable cost of repairs or restoration may be an indication of such difference in value, it may not coincide with actual loss. For example, where a house is due to be demolished, the cost of restoration may be wholly disproportionate

52 Fichardt v. Leviseur 1915 AD 182. 53 Burns v. D and G 1949 4 SA 135 (T).

54Temple v. Schroer 1929 SWA 14; Cooper, Landlord and Tenant, p. 215.

55ISEP Structural Engineering and Plating (Pty) Ltd. v. Inland Exploration Co. (Pty) Ltd. 1981 4 SA 1

(A) 5A-B.

56Spies v. Lombard 1950 3 SA 469 (A) 488. 57 Cooper, Landlord and Tenant, p. 215.

58Ibid. 217. Fair or reasonable wear and tear mean deterioration owing to the ravages of time, age, the elements and normal use.

59Ibid. 215–16.

60He/she is not responsible for damage caused through vis maior, latent defects in the premises or an act of a third party. See ibid. 223–6.

61See cases cited by Cooper, Landlord and Tenant, p. 226 n. 60.

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to the reduced value of the non-repaired or non-restored house. In such a case, the landlord’s measure of damages will not be the reasonable cost of repairs or restoration, but the reduced value of the premises.62 At termination of the lease, the landlord may demand that the property is returned to him/her, that it has to be restored to its original condition, if equitable,63 or demand compensation for the amount necessary to restore the property if he/she does not want to ask for specific performance.64 If termination of the lease is appropriate, the landlord will be entitled to the damages indicated above in lieu of repairs. In addition to a claim for damages to the premises, there is also a claim for loss of rent due to non-rentability caused by the dam-

aged condition.

If the usufructuary does not exploit the property subject to the usufruct in a reasonable manner or neglects his/her duties, the nude owner may, in appropriate circumstances, approach the court for an interdict to restrain the usufructuary from injurious activities.65 In Roman-Dutch law this action could be combined with an order that security be provided against future damage to the property.66 The interdict could also be combined with an action for damages.67 It is thus possible for a substantial amount of damages to be claimed from the estate of a deceased usufructuary who neglected the property during his/her lifetime for, among other things, the repair of the farmstead, outbuildings, fences and gates and the preparation of neglected agricultural land for re-cultivation.

Spain

When the tenant does not fulfil his/her duties, the landlord is entitled to demand either performance or termination (resolucio«n) of the lease (Law on Urban Leases, art. 27.1). The Law on Urban Leases (art. 27.2) enumerates the situations where the landlord may demand termination

62Swart v. Van der Vyver 1970 1 SA 633 (A) 648D; ISEP Structural Engineering and Plating (Pty) Ltd. v. Inland Exploration Co. (Pty) Ltd. 1981 4 SA 1 (A) 8C-G. This will be nonsensical in the case where the change from grazing to arable land has actually improved the value of the land.

63ISEP Structural Engineering and Plating (Pty) Ltd. v. Inland Exploration Co. (Pty) Ltd. 1981 4 SA 1

(A) 5 12 13 16.

64Spies v. Lombard 1950 3 SA 469 (A) 488–9. 65 See e.g. Olivier v. Venter 1933 EDL 206.

66See Voet, Commentarius, 7.6.1, 3.

67Re praedial servitudes, see Kakamas Bestuursraad v. Louw 1960 2 SA 202 (A).

(resolucio«n) such as non-payment of rent or a deposit, sub-lease without the owner’s consent, intentional damage to the property, causing a nuisance or ceasing to use the premise for residential purposes. The Law on Rural Leases (art. 25) enumerates more or less similar reasons for the termination, adding failure to improve or change the property as agreed in the contract, or where the land is zoned as urban land. The landlord may resile from the agricultural lease (rescisio«n) if the tenant does not pay for expenses required for the conservation of the property or for improvements agreed upon (Law on Rural Leases, art. 26).

Failure by one of the parties to perform his/her obligations under a lease governed by the Civil Code entitles the other party to resile from the lease (rescisio«n) (Civil Code, art. 1556) or to cancel (resolucio«n) (Civil Code, art. 1568 with reference to art. 1124) and to claim compensation for damages caused. Alternatively, he/she can elect to demand only compensation for damages, while keeping the contract intact. The misconduct of the tenant (for example, violating any of the contractual clauses, using the property for other purposes than agreed, causing damage to the property) entitles the landlord to evict the tenant (juicio de desahucio) (Civil Code, art. 1569).

Unlike in other jurisdictions, it is not possible for the landlord to obtain an interdict restraining the tenant from damaging the property. The only remedies available are eviction or termination of the contract.

When an abuse of the rights under a usufruct causes serious damage to the owner, the latter will be entitled to request transfer of the property to him/her in return for payment to the usufructuary of an annual amount based on the net profits derived from the exploitation of the property (Civil Code, art. 520). Authors interpret this article as referring to breach of the usufructuary’s obligation to exploit the property as a good paterfamilias,68 and breach of the usufructuary’s custodial duty towards the property.69 As an alternative, the nude owner can wait until the termination of the usufruct and then claim compensation from the estate of the usufructuary for damages suffered on account of the dereliction of duty on the part of the usufructuary or retain the deposit which may have been required from the usufructuary at the inception of the usufruct (Civil Code, art. 491.2).

As in the case of usufruct, the nude owner can sue for the termination of the right of use or habitation if the holder causes serious damage by

68Moreno Quesada, ‘Comment’, vol. 1, p. 1376.

69Lacruz Berdejo, Elementos de Derecho civil, vol. 3.2, p. 30.

362 c a s e s t u d i e s

abusing his/her rights (Civil Code, art. 529).70 The nude owner can also wait until the expiry of these rights and then claim compensation for dereliction of the holder’s duties.

There are no special rules on a hereditary building lease (superÞcies), but as the holder has a long term right, it may be quite difficult to grant the ‘owner’ any remedy.

70Serious abuse that has to be understood as ‘bad use’, following Rams Albesa, ‘Comment’, p. 266