A DISCOURSE ON TENANCY RELATIONSHIP IN NIGERIA
The landlord-tenant relationship exists in all the part of Nigeria. Although, it is common in our day-day transactions, it seems to be an area of law where Nigerians that Nigerians need to fully understand its concept. This article briefly explains who a landlord and tenant is; including the types of tenancy in Nigeria.
A landlord has been defined as the person entitled to the immediate reversion of the premises. Where the premises are held in joint tenancy or tenancy in common, a landlord is any of the persons entitled to the immediate reversion, which will include the attorney, solicitor, agent or caretaker, receiving rent from any person for the occupation of the premises in respect of which such attorney, agent or caretaker claims a right to receive the rent. A landlord can also be defined as any other person(s), other than the original landlord who has acquired the reversionary interest of the original landlord. This may be a bona fide purchaser of the reversion for value, a person to whom the original landlord has taken a loan from and used his reversionary interest as security or a person who has been given the reversion as a gift by the original landlord. He may also be a sub-lessor; being that he has a lease relationship with a landlord and now sub-leases the property to another tenant.
A tenant, on the other hand, includes any person occupying any premises whether by payment of rent howsoever or by operation of law, and not persons unlawfully occupying any premises under a bona fide claim to be the owner. A tenant can also be defined as a person that lawfully enters into the premises and occupies same by virtue of a tenancy agreement directly entered into between him and the landlord whether by payment of rent or otherwise. A sub-tenant to whom the original tenant has sublet or assigned all or part of his/her interests in the demised premises can also be said to be a tenant; as well as any person occupying the demised premises by operation of law.
Worthy of mention is the fact that over the years, the courts have attempted to bring the provisions of the Recovery of Premises Laws of various states alive. Thus, it has been held that what qualifies a person as a tenant is “lawful occupation.” In the case of ABEKE V. ODUNSI (2013)ALL NWLR (PART 697) 1797 , the Supreme Court, relying on its old case of Ibiyemi Oduye Vs Nigeria Airways Ltd (1987) NWLR (Pt.55) 126; (1987) 4 SC 202; (1987) All NLR 398, (1987) LPELR - SC.135.''10 held as follows:
''Who then is a tenant? Under the Rent Control and Recovery of Residential Premises Law - Section 40(i) provides thus:- "Unless the content otherwise requires "tenant" includes a sub-tenant or any person occupying any premises whether on payment of rent or otherwise but does not include a person occupying Premises under a bonafide claim to be the owner of the premises."
This decision underscores and reaffirms the fact that by Supreme Court interpretation of the provisions of the various rent control and recovery of premises laws in Nigeria on the meaning of a tenant, lawful occupation is the pass mark for being a tenant. The implication of being in “lawful occupation” is that apart from trespassers and squatters (who are occupying premises unlawfully) and bona fide claimant of the premises.
Historically, the relationship between the landlord and the tenant was founded purely on contract or law of obligations alone and does not include the right to properties. The essence of this is that only the parties to the agreement and not third parties could benefit from it. It was by the end of the fifteenth century that the law considered the relationship between the landlord and the tenant as conferring on the tenant a right in property binding on other people who include the family members of the tenant who are occupying the premises by virtue of the tenant’s tenancy with the landlord; subtenants brought into the premises by the tenant and any other persons to whom the tenant might have alienated his/her interests to as some form of security. The scope of the law of landlord and tenant in Nigeria can be better understood as being a mix of law of contract, law of real property, law of succession and law of commercial transactions. The nature of the relationship between the landlord and the tenant has been described as one that arises between the parties by any of the following ways: 1. Agreement (expressly or impliedly as in periodic tenancy); 2. Statute or operation of law (statutory tenancy and successive tenancy); and 3. Estoppel; As an aspect of law of contract, all the essential ingredients of a contract (offer, acceptance, consideration and intention to create legal relation) must be present in the transaction before the tenancy between the landlord and the tenant can be valid in law. All the principles of law of contract will also apply in a tenancy relationship being a form of contract. The Court of Appeal held in Amakeze V. Onwudiwe (2013)LPELP-20350 (CA), Per Agim, JCA (Paras E-F) P.43 that “It is in the public interest that the sanctity of tenancy agreements like all contracts be protected and the rule of law upheld at all time.” As an aspect of law of real property, a tenancy alienates an interest in real property which is possessory in nature, and must be for a term less than the estate of the landlord in that same property.
TYPES OF TENANCY:
In Nigeria, tenancy is generally divided into two —that is, contractual tenancy and statutory tenancy. Contractual tenancy may further be classified into periodic tenancy and fixed tenancy. Periodic tenancy can further be divided by the respective recovery of premises laws in Nigeria into weekly tenancy, monthly tenancy, quarterly tenancy, half-yearly tenancy, yearly tenancy. Let us look at each of the types and sub-divisions in details, and with the aids of decided cases:
1. CONTRACTUAL TENANCY:
In Farajoye v. Hassan (2006)16 NWLR (Pt. 1006) 487, the court defined a contractual tenancy as
“the usual or common one that involves agreement between the landlord and the tenant, written or oral on the terms and conditions of the tenancy.”
A contractual tenancy is a kind of tenancy which must involve all the elements of a valid contract such as offer, acceptance, consideration and intention to create a legal relation. A contract tenancy may either be made orally or in writing. Where it is written, it usually contains the terms and conditions of the tenancy, together with the rights and obligations of both the landlord and the tenant. Where however, it is made orally and the terms and conditions of the tenancy are not orally spelt out, the law or the court will not presume that parties agree on covenants that are ordinarily expected to be expressly stated in a tenancy agreement if so desired by the landlord and the tenant. In this situation, the rule that the court of law will not make a contract for the parties will come to play. However, covenants that are implied by law will at all times be interpreted to be part of the oral tenancy agreement, even if they are not expressly agreed on by the parties.
2. STATUTORY TENANCY:
This is a type of tenancy that is brought about by the operation of law, as distinct from one brought about by the joint agreement of the landlord and the tenant. It is a tenancy that the law presumes to exist by operation of law after the original contractual tenancy has expired (as in the case of a fixed tenancy) or has been determined (as in the case of a periodic tenancy), but the tenant holds over or fails to give up possession of the demised premises. Statutory tenancy is not directly provided for or recognized in any of the rent control and recovery of premises laws of the respective States in Nigeria. Instead, it is a creation of the court which is drawn majorly from the incidents of the obligations imposed on the landlord by the rent control and recovery of premises laws of the respective States in Nigeria in the event that the landlord seeks to recover premises from the tenant after the determination or expiration of the contractual tenancy. A statutory tenancy is a tenancy that results by operation of law after the expiration of an earlier contractual tenancy between the landlord and the tenant. It is usually an incident of obligations vested by a statute on the landlord towards recovery of the premises being occupied by the tenant. Statutory tenancy allows the tenant to hold over the possession of the premises without the consent or willingness of the landlord until appropriate legal actions have been taken against him or possession is voluntarily yielded up by him. Under a statutory tenancy, the tenant cannot be regarded as a trespasser until he is properly served the statutory notice(s) and same has expired.
3. FIXED TENANCY:
A tenancy is said to be fixed when there is certainty as to the commencement and the expiration of the tenancy. It is for a fixed duration, which means that upon the expiration of the duration, the tenancy relationship comes to an end naturally. A fixed tenancy does not enjoy presumption of automatic renewal like a periodic tenancy. It is a tenancy for a term certain, and the certainty of the term is known to and agreed on by both parties right from the beginning. A statutory tenancy determines automatically, without the requirement for service of a quit notice. What is required is a 7-day notice intention to recover premises. See section 13 Tenancy Law of Lagos State. In Joseph v. Adole (2010) LPELP-CA/A/198/2007, the Court of Appeal construed a fixed tenancy as follows:
"The position of the law is that a lease or tenancy for a fixed term automatically determines when the fixed term expires. Quit notice is usually obviated in the case of a fixed tenancy since the term of expiration is normally known unlike periodic tenancies that continues automatically from period to period until it determines by a notice to quit." See Nweke v. Ibe (1974) 4 ECSLR page 54."
4. PERIODIC TENANCY:
A periodic tenancy is one that begins and ends at a particular period, but which renews itself automatically at the end of that particular period for another successive period of equal length. Unlike a fixed tenancy, a periodic tenancy enjoys automatic renewal at the end of one period presumably on the same terms and conditions as the expired period. It is not for a term certain, as the very end of it cannot be ascertained by the landlord and the tenant as at the time of entering into the contract. A periodic tenancy is also a form of a contractual tenancy. It can also be for one week, six months, one year or more, depending on the relevant law and the agreement between the parties.
5. TENANCY AT WILL:
Tenancy at will arises where a tenant, after the expiration or effluxion of his tenancy, holds over with the consent of the landlord, but on the condition that either the landlord or the tenant may terminate the tenancy at their pleasure. It is devoid of certainty of term when the tenancy will be determined. Tenancy at will is also a form of contractual tenancy because it involves a decision reached ad idem by the landlord and the tenant. It was held by the Court of Appeal in a very recent case of OYEGBESAN V. OYEGBESAN (2014) LPELR-23358(CA) Per NDUKWE-ANYANWU, J.C.A., pp. 10-11,, paras.G-C). as follows:
“A tenancy at will has built into the mutual understanding that both the tenant and the landlord can terminate the tenancy when any of them likes or at any time convenient to any of them.”
In conclusion, the concept of statutory tenancy in Nigeria is not expressly provided for in respective tenancy laws. the courts through judicial decisions have been responsible for interpreting the provisions of the tenancy laws by giving elaborate interpretations of the provisions of the laws to enhance the understanding of the principles and jurisprudence of landlord and tenant in Nigeria. Thus, it is through judicial decisions, especially of the Supreme Court, that the concept clearly finds its way into our legal practice.
NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact email@example.com
WRITTEN BY CHAMAN LAW FIRM TEAM
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