IMPORTANCE OF COVENANTS IN A TENANCY AGREEMENT.
Covenants represent the set of promises to do or not to do certain acts. Where, therefore, parties to a tenancy agreement have covenanted to do or to restrain from doing certain acts, the doing of such act will amount to a breach of contract which is actionable against the party that breaches the covenant.
Covenants in every contractual relationship operate as terms and conditions of a contract that must be observed by parties to the contract in order to give effect to the terms of the contract. Covenants are usually enforceable upon breach by the party who suffered from the breach occasioned by the other party. It is the covenants in themselves that make up the contract. Covenants represent the set of promises to do or not to do certain acts. Where, therefore, parties to a tenancy agreement have covenanted to do or to restrain from doing certain acts, the doing of such act will amount to a breach of contract which is actionable against the party that breaches the covenant. In the case of Isheno V. Julius Berger (Nigeria) PLC (2008) All FWLR (PART 415) 1633 at 1653 (paras H-A), the Supreme Court held as follows:
“…it is settled law that parties to an agreement or contract are bound by the terms and conditions of the contract they signed, in this case, exhibit H, and cannot operate outside its terms and conditions.”
The sacredness of covenants in a tenancy agreement will also apply to contracts orally entered into by the parties, especially when the terms are clearly spelt out by the landlord and tenant. In the case of Robinet Nigeria Limited V. Shell Nigeria Gas Limited (2013) LPELR-22144(CA), The Court of Appeal has emphasized 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.”
TYPES OF COVENANTS.
Generally, there exists three types of covenants – Implied covenants, Usual covenants and Express covenants. They are briefly explained below:
1. IMPLIED COVENANTS:
The law is that there are certain covenants that are implied or inferred by law in a lease or landlord and tenant relationship, depending on the circumstances, in the absence of an express provision in a lease.
2. USUAL COVENANTS:
Usual covenants are those that are proper and common in a lease based on the facts or evidence presented before the court. In deciding what covenants are usual, the court pays regard to the general conveyancing practice, the type of lease in question, the custom of the locality in which the property is situated, the purpose and usage of trade for which the property is let and other prevailing circumstances.
3. EXPRESS COVENANTS:
Express covenants are those covenants which are expressly stated. There is a definite agreement between the parties to a lease on express covenants. There are certain covenants that the law will not ordinarily imply even where the parties fail to expressly agree on them. The reason for this will ordinarily be that the court must not be found making a contract for the parties, as they are bound by what they agreed on, and the freedom and sanctity of a contract have to be respected (see Robinet Nigeria Limited V. Shell Nigeria Gas Limited (supra). It should be noted, however, that the sanctity of a contract will not remove the power of the court to imply covenants for quiet enjoyment, exclusive possession subject to right of reasonable inspection, right to privacy and condition for fitness for purpose in favour of the tenant on the one hand; and payment of rent, rates and taxes; obligation not to commit waste; and obligation to put the demised premises to a tenable use in favour on the landlord on the other hand. Under the Tenancy Law of Lagos 2011, the above-mentioned express and implied covenants have now been recognized as rights and obligations of the landlord and the tenant respectively. The effect of this is that where a tenancy agreement does not contain express and/or implied covenants, the court will adopt the rights and obligations of the parties under the Law as their covenants under the agreement.
COVENANTS IN A TENANCY AGREEMENT FOR THE TENANT.
1. Right to privacy.
2. Right to freedom from unreasonable disturbance.
3. Right to exclusive possession of the premises, subject to landlord’s restricted right of inspection.
4. Right to use of common areas for reasonable and lawful purposes.
5. Obligation to pay rent as agreed.
6. Obligation to pay all existing and future rates and charges not payable by the landlord by law.
7. Obligation to keep the premises in good and tenable repair.
8. Obligation to allow the landlord to carry out inspection at all reasonable hours of the daytime.
9. Obligation not to make alterations or additions to the premises without the written consent of the landlord.
10. Obligation not to assign or sub-let any part of the premises without the written consent of the landlord.
11. Obligation to notify the landlord where structural or substantial damage has occurred.
COVENANTS IN A TENANCY AGREEMENT FOR THE LANDLORD.
1. Obligation not to disturb the tenant’s quiet and peaceable enjoyment of the premises.
2. Obligation to pay all rates and charges as stipulated by law.
3. Obligations to keep the premises insured against loss or damage.
4. Obligations not to terminate or restrict the use of common facility.
5. Obligation not to seize any item or property of the tenant or interfere with tenant access to his personal property.
6. Obligation to effect repairs and maintain the external and common parts of the premises.
Conclusively, it should be noted that the breach of any of these covenants (obligation) is actionable and will entitle the plaintiff to any or some of the remedies for breach against the Defendant. As regards the landlord, the court may grant any of the following reliefs:
1. Premature termination of the tenancy.
2. Right to re-entry and forfeiture (forfeiture may apply where the tenant has contested the landlord’s title).
3. Award of damages.
On the other hand, the court may grant any of the following reliefs in favour of the tenant:
1. An order of specific performance.
2. Award of damages.
3. Premature termination of the tenancy and demand for unused rent.
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
TEL: 08065553671, 0802423008