What holding over means
Holding over is what a tenant is doing when the tenancy has ended and they are still there.
The tenancy may have ended by effluxion of time, where a fixed term expired, or by a valid notice to quit. Either way, from the moment it ends the person in occupation is no longer a tenant under that tenancy.
What they are instead depends on what happens next. A person who stays without the landlord's agreement is a tenant at sufferance, holding over. A person the landlord positively agrees may stay on has a new arrangement, and the terms of it become the question.
The distinction matters financially. Rent is payable under a tenancy. Once the tenancy has ended, what is payable for continued occupation is not rent but mesne profits, being compensation for the use and occupation of the property during the period of holding over.
How it is used
For a landlord, the sequence is prescribed and the mistakes are predictable.
Once the tenancy has determined, if the tenant does not leave, the landlord serves the notice of intention to recover possession, commonly seven days, and then files in court.
What the landlord should not do is accept rent. Accepting a payment described as rent, for a period after the tenancy has ended, can be treated as evidence that a new tenancy was created, which resets the entire process. Where a landlord takes money during this period, it should be documented expressly as mesne profits paid without prejudice to the recovery proceedings, and not as rent.
Self help is the other error. Changing locks, disconnecting utilities or removing belongings is unlawful however clearly the tenancy has ended.
For a tenant, holding over is a weak position but not a defenceless one. The notices must have been valid, the correct process must have been followed, and mesne profits claimed must be reasonable rather than punitive. A tenant negotiating time to leave is usually better served by proposing a documented arrangement than by simply staying.
Key features
- Occurs when a tenant remains after the tenancy has determined
- The occupier becomes a tenant at sufferance rather than a tenant
- Compensation for the period is mesne profits, not rent
- Accepting rent can create a new tenancy and reset the process
- The landlord must still follow the statutory recovery procedure
- Self help remains unlawful regardless of the tenancy having ended
How this works in Nigeria
Recovery of premises is governed by state legislation, and the two notice process applies whether the tenant is holding over or the tenancy is being determined.
Mesne profits are the point most Nigerian landlords and tenants get wrong. They are compensation for occupation, usually assessed at the rate the property would command, and they run from the end of the tenancy until possession is delivered up. A landlord claiming them should plead them specifically, and should keep the claim reasonable, since a court assesses what is fair rather than what is demanded.
The rent trap catches landlords repeatedly. A tenant who has been served notice sends a transfer, the landlord's account receives it, and months later the tenant argues a new tenancy arose. The safest course is to write immediately confirming that any sum received is accepted as mesne profits without prejudice, or to refuse and return the payment.
Statutory tenancy is the related concept. Where legislation protects a tenant whose contractual tenancy has ended, they may remain a statutory tenant with the protection the applicable state law gives, and the landlord's route to possession runs through the statutory grounds. The position varies by state and by the type of premises.
For commercial premises the parties frequently negotiate a short extension rather than litigate, and documenting that extension properly avoids both the rent trap and the uncertainty.
Rent vs mesne profits vs damages
Three payments that look similar and arise at different stages.
Rent is payable under a subsisting tenancy. It is the consideration for occupation, and it stops being rent when the tenancy ends.
Mesne profits are payable for the period of holding over, from the determination of the tenancy until possession is given up. They compensate the landlord for being kept out, and they are usually assessed by reference to the market rate for the premises.
Damages compensate for a separate loss, such as damage to the property or a breach of a repairing covenant. They are claimed alongside possession and mesne profits where the facts support them.
A landlord's claim in a recovery of premises action typically asks for possession, arrears of rent to the end of the tenancy, and mesne profits from then until possession is delivered. Describing the last of those as rent is the error that hands the tenant an argument.
Limits and risks
The process is slow. Even where the tenant plainly has no right to remain, two notice periods plus court time mean months.
Mesne profits are also assessed by the court rather than fixed by the landlord, so an inflated claim will simply be reduced.
Statutory protection complicates matters in some states and for some premises, so a landlord cannot assume that the end of a contractual tenancy is the end of the tenant's rights.
And recovering the money is separate from recovering possession. A judgment for mesne profits against a tenant who has left with no assets is worth what they can pay.
Worth knowing
Do not accept rent from a tenant who is holding over. If money arrives, write the same day confirming it is accepted as mesne profits without prejudice to the proceedings. Nigerian landlords lose recovery cases because a payment was received and recorded as rent.
Questions people ask
What does holding over mean?
A tenant remaining in possession after the tenancy has ended, whether by expiry of a fixed term or by a valid notice to quit. They become a tenant at sufferance rather than a tenant.
What are mesne profits?
Compensation payable for occupation during the period of holding over, from the end of the tenancy until possession is delivered up. They are usually assessed at the market rate for the premises.
Can a landlord accept rent from a tenant holding over?
It is risky. Accepting rent for a period after the tenancy ended can be treated as creating a new tenancy, which resets the recovery process. Any money received should be documented as mesne profits without prejudice.
Can I change the locks once the tenancy has ended?
No. Self help remains unlawful even where the tenancy has plainly ended. The landlord must serve the notice of intention to recover possession and obtain a court order.
What is a statutory tenant?
A tenant whose contractual tenancy has ended but who remains protected by the applicable state legislation. The landlord's route to possession then runs through the statutory grounds, and the position varies by state and premises type.
How long does it take to remove a tenant holding over?
Months, even in a straightforward case, because the notice periods and the court process both take time. Negotiating a documented departure date is often faster than litigating.