Thursday, 2 July 2020

THE TENANT AND THE LANDLORD

The relationship between a tenant and his landlord is one duly protected by their agreement and the law and as such nothing can be done between them outside their agreement and the law as that will lead to either of them being guilty of an offence and liable to punishment. The Ignorance of law is not an excuse and as such this paper will focus on the Tenancy Law of Lagos State, applicable in Lagos[1] and the Recovery of Premise Act, applicable in Abuja to define who a tenant and a landlord is, the types of tenancy agreement we have and how such agreement can be legally terminated, the length of the notices needed for such agreement to be legally terminated and how such notices can be duly served.

WHO’S A TENANT?

A tenant is any person who holds, uses or occupies another person’s property temporarily for a term certain or fixed duration by an agreement, whether on payment of rent or otherwise or by operation of law. A tenant does not include any persons unlawfully occupying any premises under a bona fide claim to be the owner.[2] The Supreme Court stated that when a person occupied premises lawfully he becomes a protected tenant and it does not matter whether he pays regular rent, subsidised rent or indeed no rent. What is necessary to come within the Law is lawful occupation[3]. It was held in Okedare v. Hanid[4] that a tenant includes a sub tenant (sub tenant to the landlord, tenant to the initial tenant).

WHO’S A LANDLORD?

A landlord is the person entitled to title and ownership right on the property and the immediate reversion of the premises, this includes: The attorney, solicitor, agent or caretaker of the landlord, any person receiving rent or who has a right to receive rent, a former landlord where the context so requires, any person who has the title and ownership rights on property.[5]

TYPES OF TENANCY

A TENANT AT WILL: This is a tenancy relationship created where the landlord permits the tenant to occupy the premises with no definite time. Thus, importantly the tenant occupies the premises with landlord’s consent but no definite time to remain there. The following are the instance that it can arise:

·         When the tenant whose lease expires holds over possession of the property after expiration of the tenancy agreement

·         Where the person holds property before entering into a formal tenancy agreement.

·         Where a person is allowed to occupy premises for an indefinite period rent free. Odutola V. Papersack Nig. Ltd.[6]

TENANCY BY ESTOPPEL: Estoppel on the part of the Landlord from denying the existence of a tenancy. In the same vein, once a tenant enters into lawful occupation, he cannot deny the existence of the tenancy. Ude V Nwara[7]

LICENSEE: A person is permitted to use premises without having any estate or exclusive possession of the premises. It arises out of privilege to use the premises by another who is the owner/lawful person in possession of the premises. A licensee does not have an estate in the premises. Also, the licensee does not have exclusive possession of the premises.

PERIODIC TENANCY: Example is weekly, monthly, quarterly, yearly. It goes on from period to period until a notice to quit is issued on the tenant. The tenancy Agreement must evidence the nature of the tenancy. Where the agreement is silent on the nature, reference will be made to the mode of payment or when rent is usually demanded.[8] It is pertinent to note that a tenant can change from a periodic tenant to a fixed term tenancy and such person does not need a notice to quit. It carries with it an automatic renewal clause for the same period created commencing from the anniversary of the tenancy and so on until determination by a valid notice to quit.

TENANCY FOR A FIXED PERIOD: This is otherwise known as tenancy for a term certain. They have definite commencement date and the duration is certain. It does not have a renewal clause unlike periodic tenancy. It terminates automatically by effluxion of time.

GROUNDS FOR TERMINATING TENANCY AGREEMENT

Before the landlord decide to terminate the agreement between himself and the tenant the tenancy law of Lagos state and the Nigerian courts have provided for the grounds on which such agreement can be terminated;

1.      When the tenant is in Arrears of rent[9], the landlord can terminate the tenancy agreement; In the case of a monthly tenancy, where the tenant is in arrears of rent for six (6) months, the tenancy shall lapse and the Court shall make an order for possession and arrears of rent upon proof of the arrears by the landlord[10]. In the case of a quarterly or half-yearly tenancy, where the tenant is in arrears of one (1) year rent, the tenancy shall lapse and the Court shall make an order for possession and arrears of rent upon proof of the arrears by the landlord[11].

2.      Where the tenant has committed a breach of an express term of the agreement or has breached any of his obligations as provided by law[12]

3.      Where the premises is required for a purpose which is in public interest Olaoye V. Mandilas[13].

4.      Where the premise is required by the landlord for his personal use[14], or children over 18 years or his parents.[15]

5.      Where the premises requires substantial repairs[16]

6.      Where the tenant is using the premise for immoral or illegal purposes[17] or is guilty of committing nuisance or conducts that is inimical to interest or annoyance of the landlord or other neighbors.

7.      Where the premise has been abandoned by the tenant[18]

8.      Premise is unsafe and unsound and is dangerous to human life or property[19]

9.      Where the tenant or any person residing or lodging with him or being his sub-tenant constitutes by conduct, an act of intolerable nuisance or induces a breach of a tenancy agreement[20]

LENGTH AND SERVICES OF NOTICES

The length of the notice to be given to the tenant is judged solely on the agreement between the parties this is because as a general rule landlord and tenant relationship is based on contract. However where the parties do not have an agreement to the length of notice then the provision of the statutes will take effect as follows;

Tenant at will or weekly tenant: A Week’s Notice

Monthly Tenancy: A Month’s Notice

Quarterly Tenancy: A Quarter’s Notice (3 Months’ Notice)

Half-yearly Tenancy: 3 MONTH’S NOTICE[21]

Yearly Tenancy: Half a year’s notice (6 MONTHS NOTICE)[22]

The significant date is the day of service of notice and not date on the notice to quit. It helps to determine whether the proper length of notice to quit has been given[23]. For example, a Notice to Quit written on the 1 of January but served on the 7 of January is taken to be served on the 7 of January.

Service of these notices differs in Abuja and Lagos;

In Abuja it is by personal service on the tenant. However where the tenant is evading service or cannot be found, there can be substituted service by pasting on some conspicuous part of the premises.[24]

In Lagos, proper service means any manner of service that will ensure that the person to be served will have knowledge of the notices to be served[25]. Proper service of notices on a Tenant of residential premises shall be personal service and will include but not limited to all the manners stated in Section 18 of the Tenancy Law of Lagos;

a.      Service on the person

b.      Delivering it to an ADULT residing at the premises to be recovered

c.       By courier where the tenant cannot be found, by delivering same to the premises sought to be recovered, and the courier must show proof of delivery

d.      Affixing the notice on the prominent part of the premises sought to be recovered and providing corroborative proof of evidence.

Proper service of notices on a tenant of a business premises is as stated in S 19 Tenancy Law of Lagos. The manner includes:

a.      Delivering it to a person at the business premises sought to be recovered.

b.      Affixing the notice on the prominent part of the premises sought to be recovered and providing corroborative proof of evidence

Note that before substituted service can be valid, the server must establish that he made several efforts at personal service without any success. Service can be effected by landlord, his agent or legal practitioner, a Bailiff is not Necessary[26].

CONCLUSION

It is safe to state that the landlord and the tenant are bound by their agreement and the provisions of the law. It should be pointed out here that the expiration of the notice those not terminate the tenancy agreement, the landlord or his agent will further issue a notice to tenant of owners intention to apply to recover possession; otherwise known as “7 Days’ Notice” afterwards the landlord will go to court where the tenant still fails to deliver up possession. The procedure for recovery of premises must be strictly complied with or else the process will be a nullity[27]. A landlord cannot resort to forceful eviction of tenant or use of self-help he must apply for a warrant of possession, in Ihenancho V Uzochukwu[28], the Supreme Court held that where a landlord takes over his property forcefully from a tenant without an order of court, he will be deemed to have resorted to self-help and therefore, the landlord will be liable for damages in trespass. There is penalty in Lagos for any person who attempts to or forcibly ejects or molests a tenant or wilfully damages any premises. He will be liable to a fine of N 250,000.00 or imprisonment of 6 Month[29] while in Abuja, he will be liable to pay for Special Damages[30].



[1] This Law is not applicable in Ikeja GRA, Apapa, Ikoyi and Victoria Island. S. 1(3) of Tenancy Law of Lagos State

[2] S. 47 of Tenancy Law of Lagos State; S. 2 of Recovery of Premises Act

[3] Oduye V. Nig. Airways Ltd. (1987) 2 NWLR (PT. 55) 126

[4] (1995) 15 WACA 17

[5] S 2 Recovery of Premises Act 1990; S 47 Tenancy Law of Lagos State

 

[6] (2006) 18 NWLR (PT. 1012) 470

[7] (1993) 2 NWLR (PT. 278) 638

[8] S. 13(6) Tenancy Law of Lagos State; S. 8(3) Recovery of Premises Act.

[9] S. 25(1)(a) Tenancy Law of Lagos State

[10] S. 13(2) Tenancy Law of Lagos State

[11] S. 13(3) Tenancy Law of Lagos State

[12] S. 25(1)(b) Tenancy Law of Lagos State

[13] (1949) 19 NLR 59

[14] S. 25(1)(c) Tenancy Law of Lagos State

[15] Coker V Adetayo (1992) 6 NWLR (PT. 249) 612

[16] S. 25(1)(d) Tenancy Law of Lagos State

[17] S. 25(2)(a) Tenancy Law of Lagos State

[18] S. 25(2)(b) Tenancy Law of Lagos State

[19] S. 25(2)(c) Tenancy Law of Lagos State

[20] S. 25(2)(d) Tenancy Law of Lagos State

[21] No provision for this in Abuja except Lagos S. 13(1)(d) Tenancy Law of Lagos

[22] S. 8(1) Recovery of Premises Act, S 13(1) (e) Tenancy Law of Lagos

[23] Nnadozie V Oluoma (1963) ENLR 77;

[24] Section 28 Recovery of Premises Act, Chiwete V Amissah (1957) LLR 104

[25] Section 17 Tenancy Law of Lagos State

[26] Chiwete V Amissah (Supra)

[27] Awe V Said 3PLR/ 24/ 1967

[28] (1997) 2 NWLR (PT 487) 257

[29] S 44(1) Tenancy Law of  Lagos

[30] S. 29 (1) Recovery of Premise Act


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