WHAT IS THE LEGAL IMPLICATIONS OF FIXED TENANCY; IN RELATION TO CONCEPT OF TENANCY AT WILL

WHAT IS THE LEGAL IMPLICATIONS OF FIXED TENANCY; IN RELATION TO CONCEPT OF TENANCY AT WILL

A tenancy is called a fixed tenancy because the tenure of the tenancy is net only indicated but it is also stated to be for a fixed term or a certain term. It is not a fixed tenancy simply because it is a yearly tenancy or a monthly tenancy.

The agreement of the parties must indicate that it is for a term certain. This clarification is important because many times, lawyers mistake a yearly tenancy for a fixed tenancy. In other words, the fact that a tenant pays ret every year does not ipso facto make him a tenant of a fixed term. In some cases, a fixed tenancy may graduate into an ordinary renewable yearly or monthly tenancy. The distinction between the two is important because different legal consequences attach to each of them. For example, a tenancy agreement that reads: "this tenancy is for 3 years certain starting from 1st day of January 2014 to 31st December 2016 at a rent of N500,000.00 per annum" is a fixed tenancy. The implication is that on the 31 day of December, 2016, the tenancy ends and the tenant is enjoined by law to move out by himself. If he fails, the law only obligates the landlord to serve him the 7 days’ notice of owner's intention to apply to court to recover possession. If on the other hand, the tenancy agreement says that the tenancy is a yearly tenancy and renewable upon payment of rent before the expiry of the current term or not later than two weeks after the expiry of the current term, then this is clearly not a tenancy of a fixed term but one that is a conventional yearly tenancy. The implication is that if the tenant fails to pay rent or the landlord otherwise requires repossession, he must then go to the notice clause to give the required notice as provided under the agreement and if none is provided shall fall back on that provided by the law, that is, 6 months' notice to quit. I is not permissible for the landlord to only give 7 days' notice of oner's intention to recover possession in this circumstance because, in this cass tenancy has not been determined. It may also happen (as it often does) that the tenancy was originally for a fixed term of perhaps, three years. After be expiry, the tenant offers rent and the landlord accepts: The tenancy in this cast is no longer a fixed one but has become an ordinary one.

This distinction worhought clearly in Splinters (Nig) Ltd v Oasis Finance Ltd. In this case, the respondents leased out the premises to the appellants for a fixed pand January 2000 to 31 December 2001. The lease was eved on 1 January 2002 to 31" December 2002 and later 1 January, 2 years from 1st 33 to 31 December 2003. In 2004, the respondents sued for possessice Appellants contended that they were not served with statutory notices Respondents claimed they did but could not prove same. The trial count held at since the tenancy was for a fixed term, service of notices was perilous and granted the respondent's reliefs. The Court of Appeal, in allowing the appeal held:

It is obvious that if at the time the landlord seeks to recover his premises, the tenancy had already expired, it is reasonable to assume that there would be no need for a notice to quit. All the landlord would be required to serve on the tenant would be the statutory 7 days’ notice of intention to apply to court to recover possession of the premises. In this case, and in view of the fact that the parties had gone on to the stage where the tenancy was being renewed on an annual basis, the respondent should have send a notice to quit to the appellant as an indication that there would be no further renewal of the lease at the end of the existing tenancy due to expire in December 2003.

Therefore, it would be presumptuous to say that a tenancy is at an end once tenant fails to renew his rent. If the tenant does not pay rent, the tenancy is not determined automatically. If anything, he owes arrears of rent and it is ad for seeking recovery but it does not of itself automatically determine tenancy. At this point, tenancy at will takes effect. This is where the owner allows the tenant to occupy the land on the condition that possession is determinable at the pleasure of either or both parties. A tenancy at will may arise in the following situations:

·         Where a tenant continues in possession with the consent of the landlord after the expiration of his term and without the payment of rent.

·         Where a tenant under a void lease or under a mere agreement takes possession without the payment of rent.

·         Where a person is allowed to occupy premises for an indefinite period rent free.

·         Where an officer of a body is in possession of a property by virtue of being such official and later ceases to hold such office.

In the absence of a contrary agreement by the parties, payment and acceptance of rent by the tenant and landlord respectively converts the tenancy at will into yearly, monthly or periodic tenancy depending on the facts of the case.

The tenancy at will is determined when:

·         The requisite quit notice has been served.

·         The tenant gives up possession and notifies the landlord.

·         The tenant at will commits waste.

·         Either parties die or the landlord parts with his reversion and the tenant receives notice thereof.

If the tenant does an inconsistent act like assigns his interest to another, exercises acts of ownership, etc.

During the period of tenancy, the landlord is generally entitled to compensation for use and occupation of the land.

REFERENCE:

1. (2013) 18 NWLR (Pt.1385) 188 at 221.

2. AP V Owodunni (1991) 8 NWLR (pt 210) pg 391.

3. Section 57(f) Law of Rivers State.

4. Section 57 (1) Law of Rivers State.

5. Pan Asian African Co Ltd V NICON (1982) 13 NSCCP: 293.

6. sc 59 LLTLRivers.

7. AP V Owodunni(Supra).

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