LANDLORD V TENANT: LAYING THE ISSUES TO REST

LANDLORD V TENANT: LAYING THE ISSUES TO REST

In simplest terms, a tenancy is the giving out of a property for a period of three years or less.

It is easily the most prominent transaction in any society as it is very crucial for the sheltering of persons and whether you like it or not, it requires your attention

This is the reason why the issues arising must be properly checked and questions arising, adequately answered.

First question, how do people come about becoming tenants? That seems like an easy question for all of us, and we know that when people simply ask a house owner if he is willing to take them for a given period at an ascertainable price and he agrees, then a landlord-tenant relationship is created.

But how does the law classify these set of people referred to as tenants?

There are the ones we refer to as:
Tenants at will:

These ones’ relationship is created where the landlord permits the tenant to occupy the premises with no definite time.

Thus, the tenant occupies the premises with the landlord’s consent but for no definite time.

An example is when the tenant holds over possession of the property after expiration of tenancy or where the person holds property before entering into a formal tenancy agreement. ODUTOLA v. PAPERSACK NIG LTD (2006) 18 NWLR (Pt 1012) 470 SC.

Noteworthy is the fact that, this type of tenancy can be determined, that is, terminated at any time.

Tenants at Sufferance.

This category of persons enters the premises lawfully but remains in occupation without the consent of the landlord.

At common law, upon the due determination of the term of the tenancy either by effluxion of time or by a valid notice to quit, the tenant, if he still holds over possession and detains the premises from the owner, becomes a tenant at sufferance and is sometimes considered to be a trespasser.

However, under the various laws governing recovery of premises in Nigeria, such a tenant is protected by the Statutes and has a right to possession even to the exclusion of the owner until such a tenant either voluntarily gives up possession or is compelled by an order of court to vacate the premises.

In PAN ASIAN AFRICAN CO. LTD v. NICON (1982) 13 NSCCP, it was held that a statutory tenant is an occupier who, when his contractual tenancy expires, holds over and continues in possession by virtue of special statutory provisions.

Thus, he is called a statutory tenant (or a sitting tenant in Lagos Tenancy Law 2011 jurisdictions).

What this means is that he ordinary ought to be a trespasser, but for the protection of the law governing the transaction.

Tenants for fixed periods.

These ones’ tenancy is for a fixed period or duration. This is an ideal tenancy as there is certainty of duration.

It can be for a year, ten years, fifty years or more. Usually this tenancy is determined upon effluxion of time.

In other words, it is said that the tenancy agreement likewise embodies your notice to quit.

Once the term for which it was granted expires, that would bring the tenancy to an end – UBA v. TEJUMOLA & SONS LTD (1988) NWLR (Pt.79) 662.

Licensees
A licensee is privileged to enter or remain on the specified property only by virtue of the possessor’s/licensor’s consent they may be regarded as a statutory tenant since he enters the premises lawfully and the law says that whoever enters property/premises lawfully cannot be ejected unlawfully.

The conclusion is that whoever is in occupation of premises in Nigeria enjoys some minimum protection as long as he enters the premises lawfully.

In AP LTD v. OWODUNNI (1991) 8 NWLR (Pt.210)391, the Supreme Court had stated that on point of law and of fact, once there is an incident of statutory tenancy, the tenancy can only be lawfully terminated

Is the Squatter a Licensee?
No, he is not. A squatter (adverse possessor) occupies property (frequently a building) without the consent of the owner and under a claim of ownership.

Does Long Possession translate a Squatter to a Tenant?
If the squatter openly and continually occupies the premises for a statutorily determined period of years, then the squatter acquires ownership.

This could very well be said to be gleaned from the legal principle of latches and acquiescence.

Evicting squatters requires an eviction proceeding since there is, unlike trespassing, a claim of ownership.

If the squatter claims to have a deed to the property, then there may be a judicial proceeding required to determine title (ownership) of the property.

This may be a little bit more complex than eviction. Abuses of the law governing recorded deeds and title may occur.

The thin line between a Statutory Tenant and a Trespasser.

The is a thin line between a trespasser and a tenant at sufferance/statutory tenant/sitting tenant is that a trespasser is on the premises unlawfully, while the tenant at sufferance came into possession lawfully.

The circumstance in which it arises is similar to tenancy at will, initial lawful entry.

In all you do, never forget how sacrosanct the tenancy agreement is. It forms the contractual basis for any tenancy.

It usually contains the key modalities for any tenancy. It may be made orally made or written.

Albeit, it is advisable to make it in the written form for the sake of enforceability, and it is always most advisable to keep these things as formal as possible.

Know-Your-Rights (KYR)

The Rights and Obligation of Landlord Subject to any Provision to the Contrary In the Tenancy Agreement.

  1. Issuance of a payment of rent receipt
  2. Privacy of the tenant
  3. Freedom from unreasonable disturbance
  4. Exclusive possession of the premises
  5. Payment of rates
  6. Insurance
  7. Effect repairs and maintain the external and common parts of the premises
  8. Not to terminate or restrict the use of a common facility or service for the use of the premises.

The Rights And Obligation Of Tenant Subject To Any Provision To The Contrary In The Tenancy Agreement.

  1. Payment of rents at the stipulated time
  2. Pay all rates and charges not payable by landlord by law
  3. Keep the premises in good and tenantable condition
  4. Not to make any alteration or additions without the written consent of the landlord
  5. Notify the landlord when structural or substantial damage has occurred to any part of the premises as soon as practicable

The Procedure for Recovery of Premises

Now, as an Oga landlord that is desirous of expunging that rude and debt-stricken tenant from your house, you must know that the law is a bit more sympathetic to the tenant’s cause and this is why very strict markers have been laid down for the landlord to toll in order to appropriately possess his possession, failing which he may not get his apartment back at the desired time.

Letter of Authority
This letter of authority is very important nowadays in that where it is not given, all steps taken by an agent or solicitor to recover the premises would amount to a nullity.

Yes, you read that right, a nullity- Zero!

And interestingly, there cannot be any ratification of such act by the landlord.

The agency by such agent or solicitor must be established by means of a written authority or a power of attorney from the landlord in his favor.

Failure to prove it renders all steps taken null!

In COKER v. ADETAYO (1992) 2 NWLR (Pt. 249) 612, the Court of Appeal held that both notices must only be issued with the written authority of the landlord, whether solicitor or not.

Notice to Quit
This is usually applicable to periodic tenancy and tenancy at will.

The notice to quit can be issued by the landlord or his solicitor or agent with the written authority.

A landlord who intends to recover possession of his premises is under an obligation to issue a Notice to Quit except if the tenancy has expired by effluxion of time or by operation of law.

The notice will specify the period within which the tenant must quit and deliver up possession of the premises.

The length of the notice depends on the agreement between the parties since tenancy is a matter of contract but in the absence of such agreement, it would be determined by statute as follows:

  1. Tenancy at will – a week’s notice
  2. Weekly tenancy – a week’s notice
  3. Monthly tenancy – one month’s notice
  4. Quarterly tenancy – three months’ notice
  5. Half-yearly tenancy (6months) – three months’ notice (this is in Lagos only)
  6. Yearly tenancy – six months’ notice
  7. Above one year – six months’ notice

It must be noted that the periods specified above are subject to any agreement between the parties.

The periods specified above are determined by reference to the nature and length of the tenancy.

However, in Abuja and places governed by the Recovery of Premises Law such as Oyo, Rivers, Kano states et al, a yearly tenancy MUST be determined with at least six months’ notice to quit, and that notice MUST terminate on the eve of anniversary of the tenancy.

Put differently, if a tenancy agreement commenced on 1st January, 2019, the anniversary is 1st January 2020 and the eve of the said anniversary will be 31st December, 2019.

Thus, in a state like Rivers or Oyo, if an instruction is given to terminate the tenancy otherwise known as Notice to Quit in July 2019, the notice will only be valid if it terminates the tenancy on 31st December 2019.

What this means is, the period of at least 6 months is satisfied and the eve of anniversary is also sufficiently complied with.

In the case of Fixed tenancies, as a general rule, the notice to quit must expire on the eve of the anniversary of the current term, subject of course to any agreement to the contrary in any tenancy agreement between the parties.

In AFRICAN PETROLEUM v. OWODUNNI (supra), the Supreme Court held that a notice to quit must expire on the eve of the anniversary of the current term.

Even if the notice to quit covered the required period/length of notice or even more but did not expire on the eve of the anniversary, the notice is invalid.

In OWOADE v. TEXACO AFRICA LTD (1973) LPELR-SC.135/1972 , the required notice was given but it did not terminate/expire on the anniversary.

Such notice was held to be invalid.
Crucially, what this means is that the Notice to quit can be longer than the required period, but it must not be shorter else, it becomes invalid.

I reckon therefore that it is always wiser to err on the side of surplussage than otherwise.

Note that whether a tenant pays rent or not, he is still entitled to notice to quit and issuing notice to quit does not mean that rent would not be paid.

7 Days’ Notice of Owner’s Intention to Recover Possession

After the notice to quit expires, the tenancy relationship ceases to exist.

The state of things change and status of the parties automatically switches from landlord and tenant to owner and occupier of premises respectively.

On the expiration of the notice to quit, if the tenant or other person actually in possession of the premises (or part thereof) fails to quit and deliver up possession, the landlord (now owner) or his agent will serve on such person, a written notice duly signed by the landlord or his agent, that is, the seven (7) days’ notice of owner’s intention to apply to recover possession.

It will state that the landlord intends to apply to recover possession on a date not less than seven (7) days from the date of service of the notice.

The notice of owner’s intention to recover possession is usually given for all types of tenancy.

Action in Court by way of Summons. (Writ or plaint);
This is mostly for the lawyers and is the last resort where all other forms of dispute resolution outlets must have been exhausted.

A few salient points should be noted as well. For all purposes, the courts where tenancy grievance can be aired include;

The District Court can assume jurisdiction where the flat rate does not exceed five million.

Magistrate Court where the flat rate does not exceed ten million.

High Court where the flat rate exceeds all the financial limitation set by the law against the lower courts.

Dispensing with Notice to Quit

There are certain instances where the notice to quit can be dispensed with. In such cases, only the seven (7) days’ notice of owner’s intention to apply to recover possession will be served.

Those instances include:

  1. Where the tenancy is a fixed tenancy and it expires by effluxion of time. No need to serve notice to quit, but notice of owner’s intention must be served.
  2. In the case of monthly tenancy where the tenant is in arrears of rent for 6 months. No need to serve notice to quit, but notice of owner’s intention must be served.
  3. In the case of quarterly or half-yearly tenancy, where the tenant is in arrears of rent for one year. No need to serve notice to quit, but notice of owner’s intention must be served.
  4. Under the Rent Control Laws, notice to quit is not necessary where in the case of a monthly tenancy, the tenant is in arrears of rent for three months.
  5. Notice to quit is not necessary where the tenant repudiates the landlord-tenant relationship by giving the landlord a notice of termination of the tenancy.

In all these cases above, there would be no need to serve a notice to quit.

In closing, the need for an agreement clearly stating terms/ the power of contract cannot be over emphasized and every party in a tenancy should endeavor to make one.

Verbal and vague agreements have grown to become the order of the day.

There may arise a dispute concerning the terms of the agreement and who has violated the agreement.

At a minimum, the landowner needs a written document signed by the occupier that acknowledges the landowner’s ownership and capacity of the occupier, revocable at any time and for any reason in the sole discretion of the landowner.

It is always safer to have a piece that expressly spells out rights and obligations of parties.

Also, the need for employing a lawyer is vehemently recommended, I reckon pieces such as this may want to make you feel like you have all it takes to take on your landlord or tenant as the case may be, but trust me beyond the preliminary discussions, you will need a professional to handle your transactions and dealings.

Be sure to get yourself a kick ass Estate and Property Lawyer!

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