Hoffmann v Smith - Lease agreement cancellation dispute (Tacit relocation) - Ejectment and arrear rental (NAHCMD 574)

Sep 1, 2026

Namibia High Court of Namibia Main Division delivered a judgment on a lease dispute between Hoffmann and Smith. The court assessed whether cancellation of the lease under Clause 23.1 was valid, and whether tacit relocation occurred after the lease period expired. The renewed arrangement’s rental escalation provisions were contested, including effects of a temporary COVID-19 reduction. The court upheld the cancellation, ordered ejectment, and awarded arrear rental for May to July 2024, while clarifying requirements for proving damages for unlawful holding over.

LanguageEnglish

CategoryGeneral

FormatDOCX

Pages25

Reading Time9 min

AccessFree to download

Summary

Lease term, renewal, and tacit relocation

Rental escalation and COVID-19 reduction

Cancellation validity and arrears

Ejectment, damages for holding over, and costs

REPUBLIC OF NAMIBIA HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK JUDGMENT Case no: HC-MD-CIV-ACT-CON-2024/02632 In the matter between: MATTHIAM HOFFMANN PLAINTIFF and RUAAN SMITH DEFENDANT Neutral citation: Hoffmann v Smith (HC-MD-CIV-ACT-CON-2024/02632) [2025] NAHCMD 574 (25 September 2025) Coram: SIBEYA J Heard: 28-29 July and 15 August 2025 Delivered: 25 September 2025 Flynote: The law of contract – Lease agreement – Validity of the cancellation of the lease agreement disputed – Tacit relocation – Escalation of the rental amount – Ejectment – Damages arising from unauthorised holding over of the property – Agreement found to have been validly cancelled – Ejectment granted together with payment of arrear rental – Tacit relocation not established. Summary: The parties entered into a lease agreement on 13 December 2017, which was to endure for a period of two years, from 15 December 2017 to 31 December 2019. The defendant would pay an amount of N$23 000 per month as the rental amount, due on or before the 3rd day of each consecutive month. It was further an agreed that the monthly rental amount would be subject to an 8 percent annual escalation. The defendant took possession of the leased property. When the lease period expired at the end of December 2019, the parties, tacitly renewed the agreement on similar terms as before, and the defendant continued his habitation without objection from the plaintiff. There was thus, a tacit relocation of the lease agreement but fell into arrears with the monthly rental, but remained in such possession. The plaintiff cancelled the agreement in of Clause 23.1 of the agreement, which entitled him to cancel. The defendant disputed the validity of the cancellation. A dispute arose on whether or not the annual escalation as a reflected term of the written lease agreement, was part of the tacit terms of the renewed lease agreement. In the early 2020, the plaintiff agreed to reduce the monthly rental to N$ 20 000 in response to the economic effects of the COVID-19 pandemic on the defendant. The plaintiff maintains that, as of 2021, the rental amount was subject to an annual escalation of 8 percent and that the temporary reduction did not alter the terms regarding rental escalation. On this basis, the plaintiff included arrear escalation amounts on the monthly rentals paid from January 2021 onwards. The defendant continued paying the monthly rental amount of N$ 20 000 for the years 2020 to 2023. No escalation was paid by the defendant for the foregoing years. The defendant fell in arrears in early 2024. Between January and April 2024, the defendant made belated payments which constrained the plaintiff to follow up on outstanding payments. The defendant’s last rental payment was made at the end of April 2024. The plaintiff, elected to cancel the agreement on 10 June 2024. The plaintiff’s cancellation was confirmed through his legal practitioners on 16 July 2024. The defendant refused the cancellation, and refused to vacate the property. The plaintiff now seeks the ejectment of the defendant from the leased property, together with payment of the arrear rental, including backdated annual escalation from January 2021 to July 2024, and arrear rental for May 2024 to July 2024. In addition, the plaintiff seeks payment for the holding over period of the property from August 2024 onwards. Held: that the plaintiff’s cancellation of the agreement is valid, while defendant’s, position to withhold rental payments for the duration of the dispute ran contrary to clause 28 of the agreement he continue to make payment of the rental, despite the dispute. The design of Clause 28 is to prevent this exact circumstance: where a lease agreement has come to an end, the lessee fails to vacate the property, leaving the lessor with an option to claim damages for as long as the lessee remains in unlawful occupation thereof. Held that: considering that the lease was validly terminated, the plaintiff made out a case for

FAQs

Was the cancellation of the lease agreement valid?

Yes. The court found the plaintiff’s cancellation of the agreement to be valid.

Did the renewed lease include the 8% annual rental escalation clause?

No. The court held the escalation clause was collateral and did not carry forward into the tacitly relocated lease without proof of the parties’ intention to incorporate it.

What orders did the court grant regarding the defendant’s occupation and rental arrears?

The court ordered the defendant’s ejectment and ordered payment of arrear rental for May, June, and July 2024.

Sep 1, 2026

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