RIGHTS OF TENANCY PARTIES: THE LACUNA IN LANDLORD AND TENANCY PROTECTION UNDER NIGERIAN TENANCY LAW

Authored By: Sola-Alimi Zion Ademurewa

University of Ilorin

Abstract

This paper centres on the need to amend the gaps in the rights of parties to a tenancy agreement. It introduces the meaning of the parties involved and outlines the gaps therein leaving recommendations available to the government on amending the laws or conventions that are being followed. Tenants and Landlords have for a long while been at the received end of the wrongs of the law. This paper analyses the lacuna and seeks a way out of the mess created. It also defines properly the role players in the tenancy relationship. It further established the shields made available to each party and how it ought to be exercised. It further recommended that the laws guiding tenancy agreements should be amended to promote fairness in the society.

1.0 INTRODUCTION

Over the years, Nigeria experienced a massive oil boom which was quite predominant in the 90s and this was the primary factor that drew people to move to urban areas birthing the Landlord and tenancy relationship. Everyone wanted a better life and hence sought for greener pastures. The top civil servants who had extra space in their residence gave a part which was referred to as a boys quarter to the immigrants and in return got a little consideration and this continued till it became a phenomenon and the relationship was officially recognized. The relationship that was expected to help people and create a haven for became the major reason why small claim courts are filled daily In Nigeria. Every tenant has a claim against the Landlord and vice versa. The law has provided rights for both parties in every state but the enforcement of these rights have caused more harm than good to the concerned parties. The Landlords have turned into the money grubbers and prejudiced overlords over the property while the tenants have become lax in their obligations especially in respect of furnishing consideration leaving many of them to take advantage of the leniency of the Law.

In any Magistrate court today in Nigeria especially in Ibadan, half of the matters to be heard in a day are on tenancy matters which raises the question of WHY?. The law has provided the rights of both parties but there seems to be a gap in the enforcement of the same. A very good example is an instance whereby the tenant has exclusive possession to a property and upon expiration of the lease still holds over the property making him a statutory tenant. This right to still remain in premises leaves out a lacuna on the end of the Landlord who has the right to evict the tenant.

1.1 DEFINITION OF KEY WORDS

TENANT

By virtue of Section 2 of the Recovery of Premises Act, a tenant is defined as a person occupying premises whether on payment of rent or otherwise but does not include a person occupying premise under the bona fide claim of being the owner of the premises. The individual can occupy the premises by way of operation of law and still be regarded as a tenant. Section 47 of the Tenancy Law of Lagos state also defines a tenant to include a sub-tenant or any person occupying a premises whether by payment of rent however or by operation of law. A tenant has exclusive possession to the property he occupies.

LANDLORD

A landlord is the exclusive owner of the demised premises given to a tenant. He is a person entitled to the immediate reversion of the premises. He is entitled to the collection of rent from the tenant occupying his premises.

OWNER

A Landlord is recognized as an owner under the law when a tenant has been served a 7 days owners intention to recover possession and that title remains till the individual vacates the premises.

OCCUPIER

A tenant is referred to as an occupier when he fails to deliver up possession upon the delivery of a 7 days owner’s intention to recover possession. This title remains until he delivers the premises and its appurtenances to the Landlord.

THE LEGAL FRAMEWORK GOVERNING THE TENANCY RELATIONSHIP IN NIGERIA

The two primary frameworks under Nigerian Tenancy Law are Tenancy Laws of Lagos state and Recovery of Premises Act, Abuja. Although every other state has their locally enacted laws, their provisions were adopted from the rules that apply to Lagos and somewhat, Abuja. These laws dictate the duration of rent periods as well as modes of fixing rent on tenants. The laws also provides for the rent of the tenant and the Landlord which is in tandem with the provisions of Chapter 4 of the Constitution of the Federal Republic of Nigeria.

THE LANDLORD SHIELD.

Right to collect rent: This is one of the major ingredients that defines a Landlord—–the consideration he receives. It must not be above the current market value and must only be in tandem with how the tenancy laws have prescribed for the fixing of rent. In an instance where the tenant refuses to pay rent, the Landlord can serve him a quit notice through his agent or attorney before initiating eviction proceedings in the court.

See Ihenacho v Uzochukwu.

Right to terminate the Tenancy with Notice: The Landlord has the right to determine a tenancy based on the terms stated in the tenancy or lease agreement, expiration of tenancy agreement, illegal use of premises. The notices must be served upon the tenant and may be required by the law governing the jurisdiction.
Right to evict a tenant lawfully and upon the terms of the agreement: A landlord has an exclusive right to evict a tenant when he reneges on the terms of the agreement and when he fails to renew tenancy and holds over possession of the property.
Right to inspect the property: A landlord can enter the demised premises to check for repairs. This is not a matter of protecting the physical asset though that matters it is also about ensuring that the property is being used in accordance with the terms agreement and that any maintenance issues are identified before they become expensive structural problems. The entry must be at a reasonable time and it must be preceded by reasonable notice which is typically 24 to 48 hours, though the tenancy agreement can specify a different period. It is best advised that the time and mode of the inspection should be clearly stated in the tenancy agreement.
Right to increase rent: The Landlord has an exclusive right to increase rent in accordance with the provisions of the law. Any increase that is done outside the provisions of the law can be redressed by the tenant.
Right to seek redress: This right can only be exercised after the Landlord has served the appropriate quit notices. Although in the case of Pillars v Desbordes, The court held that even though the quit notices served were defective, upon service of the hearing notice, the defective quit notice was cured. This does not excuse the fact that the Landlord should serve proper notices as upheld in the case of African Petroleum Ltd v M.K.Owodunni.
Right to recover possession from the tenant: Upon effluxion of time or per the terms of the agreement, the Landlord can recover possession from the tenant which must follow due process.

THE TENANT SHIELD

Right to exclusive possession: The tenant is entitled to an exclusive possession of the property which protects him/her from unnecessary entry or loitering from the landlord or his agent except due permission has been taken.
Right to a written agreement: Many Landlords are quite fraudulent in nature hence they would not want to have drafted written agreements before the tenant moves in. It is very important that a written agreement is signed and drafted in the presence of one or two witnesses before a lawyer.
Right to valid quit notices: The case of African Petroleum Ltd v M.K. Owodunni held that the landlord is expected to serve non-defective quit notices, else it would be null and the tenant is protected by the law to remain in the premises of the tenant.
Right to seek redress: The tenant is entitled to seek redress against the Landlord for wrongful ejection. In the case of Ihenacho v Uzochukwu, The court held the eviction process defective since the Landlord resorted to self help.

LACUNA OF BOTH SHIELDS

Eviction Enforcement: The law has created the modes in which the eviction process ought to be carried out; however , it seems as though some parties have decided to ignore the provisions of the law and resort to taking law into their own hands. The law provides expressly that adequate notices should be given before the eviction proceedings can commence else any other initiative would be held as ultra vires.
The law did not at any point prevent the eviction process in the long run, all it provides for is that eviction should be carried out as stated in the laid down rules. As much as it protects the rights of the landlord, the same story might not be applicable to the tenant. The tenant might not be able to raise enough funds to hire a lawyer and hence the ruling might eventually fall in favour of the Landlord without proper fair hearing being applied to the tenant.
The principle of self help was properly established in Ihenacho v Uzochukwu supra that such form of eviction is punishable under the law. In the case, the court ordered that possession be reinstated back to the tenant after the owner had taken law into his own hands. It is essentially important that the owners of premises ensure that they do not misuse their right to seek redress as it might boomerang and the court might rule in favour of the tenant leaving them to lose at all sides.
Absence of statutory rent control gaps: The Lagos state tenancy law in Section 4 restricts the amount of rent that may be paid or demanded for in advance by the Landlord. For example, a Landlord cannot request for the advance of a 3 year rent. A new tenant may not be required or requested to pay above a year’s rent in advance. This limitation however does not impose a general protection on the specific amount of the rent that a landlord may charge, it simply governs the period of the advance payment. The rules provide that it(the rent) is subject to the current market value but does not stipulate the amount of market value or what amount that the market value can neither increase nor falter.
There is no measurement for the market value price hence any price can be placed and would be held as market value whereas the law is expected to provide rules that would create ratios that rent should not exceed and as well as list out the manner of things that covers the cost of rent. Anything outside would be held as a contravention of the law.
Maintenance gaps: The tenant has the obligation to keep the premises intact as he or she met it upon entry into the premises. The tenant also has the duty to inform the Landlord of any damage done or repair required to the property. Section 8 of the Tenancy Laws of Lagos state provides that the Landlord is expected to make repairs to any faults in the property. This is however subject to the tenancy agreement as both parties might decide to share the liability of the damage done to the property.
What makes this a lacuna is that the law does not provide a complete and detailed class of repair that the Landlord is expected to do as well as what the tenant is meant to do. Disputes has however arisen to know whether a particular kind of damage is expected to be repaired by the tenant and this is usually a problem when the tenancy agreement is in favour of the Landlord.

CONCLUSION AND RECOMMENDATIONS

It is quite clear that the laws overlap one another which creates ambiguity in one way or another. It is only trite that the legislature pay close attention to the ‘rules’ they have made as to avoid unfairness to the tenant and to the Landlord as no party is left to be sidelined. The government can even created structures to vet the TENANCY AGREEMENTS for the good of the parties involved.

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