Also known as: restitution for use & occupation · use and occupation
Written by attorneys — see sources below.
A remedy by which a landlord or incoming tenant recovers from a tenant who holds over after lease termination the reasonable value of the premises during the holdover period. The measure is the prior rental rate unless a different reasonable rental value is independently established.
LuxeMall leased a storefront to LuxeThread Boutique at eight thousand dollars monthly with the term ending December thirty one. LuxeThread remained in possession through February without consent and blocked TrendNation from taking possession under its new lease. LuxeMall sued for the value of the use during the two month holdover. The court awarded recovery at the prior eight thousand dollar rate because no independent proof established a higher reasonable value.
Gerard leased a fenced yard to Elm Framing at two thousand dollars monthly with the term ending June first. Elm Framing continued storing equipment for three weeks after termination and prevented Gerard from delivering possession to Liberty Development under its new lease at thirty five hundred dollars monthly. Gerard and Liberty sued for use and occupation during the holdover. The court limited recovery to the prior two thousand dollar rate because no independent market evidence showed a higher reasonable value for the property.
Estil Ball owns approximately 100 acres of land in Russell County, Virginia, which formed part of a larger 265-acre tract previously owned by Reuben Sparks. On November 19, 1887, Sparks and his wife conveyed the coal and mineral rights in the 265-acre tract to Joseph I. Doran and William A. Dick, including language granting an easement to pass through the land by railway or otherwise to reach other lands owned by Doran and Dick for the purpose of mining and removing coal. Doran and Dick originally owned about 3,000 acres of land in Russell and Tazewell counties containing an estimated nine million tons of coal. Through mesne conveyances, the Raven Red Ash Coal Company became the lessee of the coal and mineral rights on these 3,000 acres. Approximately twenty-five years before the suit, the company constructed a tramway across the 100 acres now owned by Ball, extending roughly 2,800 feet, pursuant to the easement obtained from Sparks. The Raven Red Ash Coal Company also acquired coal rights on five additional small tracts not part of the original Doran and Dick holdings, including parcels owned by S. T. Newberry, Henry Bird, Ronda Blankenship, Will Bird, and W. P. Dixon. Over the five years preceding the action, the company transported 49,016 tons of coal mined from these five tracts across the tramway on Ball's land, in addition to 950,000 tons from the original tracts. Approximately 180,000 tons of coal remained to be mined from the additional tracts. Ball filed a notice of motion against the Raven Red Ash Coal Company seeking $5,000 for the use and occupation of the easement across his land for transporting the coal from the additional tracts. At trial in the Circuit Court of Russell County before Judge E. T. Carter, Ball proved ownership, the limited easement, and the unauthorized use but offered no evidence of physical damage to the property. The company's general manager testified on cross-examination that the prevailing rate for a right of way to transport coal across another's land was one cent per ton. The jury returned a verdict for $500 in Ball's favor, upon which the trial court entered judgment. The company obtained a writ of error from the Supreme Court of Virginia to review the judgment.
View caseThe landlord or incoming tenant recovers the reasonable value of the premises during the holdover period. Recovery is measured by the prior rental rate unless the claimant proves a different reasonable rental value by independent evidence.
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No. The new lease supplies evidence of market value but does not control unless the claimant proves that the higher figure reflects the reasonable rental value of the premises for the holdover tenant's use. Independent proof is required to depart from the prior rate.
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Yes. The rule expressly permits an incoming tenant whose possession is blocked to recover from the holdover tenant for the value of the use during the holdover period at the prior rent or proven reasonable value.
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No. Liability arises from the tenant's wrongful retention of possession after the lease ends. The landlord may seek both possession and monetary recovery for the holdover period without first completing an eviction action.
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