UNITED DOCKS LTD v. INTERIOR SOLUTIONS (CEILINGS AND PARTITIONS) LTD 2020 SCJ 90
FACTS
This was an appeal against a decision of the learned Judge in Chambers refusing to issue a writ habere facias possessionem in respect of a shed occupied by the respondent.
In essence, the appellant had proposed to the respondent a new lease with an increase in the rental fees to which the respondent was not agreeable.
Given that all negotiations fell through, an application for a writ of habere facias possessionem was entered by the appellant which was resisted by the respondent on the ground that it has acquired a droit de rétention since it had conducted significant renovations and construction works over the property in lite.
The application for the writ was declined.
RATIO DECIDENDI & DECISION OF THE COURT
The appellate court observed that:
(i) Given that a clause in the lease agreement clearly provided that the respondent was debarred from carrying out any alterations, additions or works of any nature without the appellant’s written approval, same amounted to a contractual clause such that the defence of droit de rétention which exists pursuant to article 555 of the Code Civil Mauricien would found no application to the present case.
For ease of reference, as provided for in Dalloz Code Civil, 1969-1970 Ed 6 « l’article 555, régissant uniquement les cas où des constructions ont été élevées sur un immeuble par un tiers, est inapplicable lorsque les travaux ont été effectués en exécution d’une convention qui fait alors la loi des parties – notamment pour les rapports entre propriétaire et locataire. »
(ii) The respondent has failed to act in good faith inasmuch as it could not prove that it had obtained the prior written approval of the appellant before carrying out the construction works, as expressly required under the lease agreement
The appeal was allowed.
Attorney for Appellant: Josephine Robert
