Jun 2, 2020

TENANCY CRISIS (Part one): Nature of Tenancy & Covenants | Okpi Bernard Adaafu (Oba) Esq.


Tenants are usually in a hurry to take possession of property without reading tenancy agreement, thereby, becoming victims of onerous terms in the agreement. Average tenants do not ask for tenancy agreement, while most property owners only issue payment receipt and nothing more. In some cases, landlords increase rent arbitrarily. On the other hand, some tenants derive pleasure in defacing rented property (redesigning without landlord’s permission). Similarly, default in payment of reserved rent on the part of tenant, usually necessitate illegal eviction. Some of the cases are wrongfully taken to the Police Station instead of the Court. These complexities give rise to protracted altercation and assault between the landlords and tenants. This article avoids legalese and explains everything about tenancy in clear terms.

TENANCY AGREEMENT/COVENANTS

Tenancy agreement is very important. It provides clear terms and prevents unwarranted possession of property after expiration of tenancy, and avoids arbitral increase of rent. It is good for every property owner to prepare tenancy agreement. Also, Tenants should not take possession of property without demanding for tenancy agreement and endeavor to read it carefully.

There is no particular form to write the agreement but a standard tenancy agreement must contain; date, names and addresses of parties, rights and obligations or covenants and witnesses.

 

 

NATURE OF TENANCY

Understanding the types of tenancy is crucial because it helps the Landlord to calculate the length of notice to quit and guide the Tenant properly.

Ø Periodic Tenancy: Here the landlord and tenant agree on certain duration (commencement and expiration date) but there is a springing interest which can only be brought to an end by proper notice. This means that, even when the duration expires, the tenant can renew it and continue possession and the landlord cannot evict the tenant forcefully except with due process of law. This is the most common type of tenancy in Nigeria. It can be ascertained by reference to time when rent is paid or demanded.

 

Ø Fixed Tenancy: Here there is a certain date to start and definite date to end tenancy. The landlord can re-enter the premises and take possession by due process of law. There is no automatic right to renew. Where a tenancy for a fixed term expires but the tenant continues to occupy the property and neglects to deliver up possession; such a tenant becomes a statutory tenant or a tenant at sufferance. However, if the tenant pays rent at the amount agreed under the expired tenancy, the tenant is deemed to be a periodic tenant on the same terms as the expired tenancy.

 

 

Ø Statutory Tenancy: This is when a Tenant continues in possession after expiration of Fixed/Periodic Tenancy with the protection of law. In order to evict such Tenant, the Landlord must follow due process of law. The Tenant will pay mesne profit (amount payable for the period spent after the expiration of tenancy).

 

Ø Tenancy at Will: Here the landlord permits another person to occupy premises without definite agreement. The owner of the property or the tenant can terminate the tenancy when any of them likes or at any time convenient. This type of tenancy occurs where; (i) a person is allowed to occupy a property for an indefinite period rent free, (ii) a purchaser of property has been let into possession pending completion of purchase agreement, etc.

 

 

Ø Tenancy at Sufferance: This type of tenancy is regulated by common law, it occurs when a Tenant continue occupation after the expiration of tenancy. It is important to state that, tenancy at sufferance is not operational in Nigeria; it has been replaced by statutory tenancy.

 

Ø Tenancy by Estoppel: The law will presume the relationship of Landlord and Tenant where a person let out property and it is proven that the person has no title or interest in the property. This is a simple way of holding runners/agents responsible for letting out premises without title or interest.

 

 

Ø Service Tenancy/Service Occupant: Employer can offer an accommodation to employee for no rent (service occupant). In some cases the employer will demand a little amount of rent from the employee (service tenant). Once employment terminates, the service occupant must give up possession. However, a service tenant is entitled to at least seven days’ notice to quit.

 

Ø Licence: Here the owner of property permits another to enter the land and perform certain act which would otherwise be wrongful. It can be terminated by revocation. The licensee is entitled to seven days’ notice to quit (notice of revocation).

Sometimes, the type of tenancy may not be expressly agreed by the parties, and it may be difficult to ascertain the nature of tenancy. In such cases, the nature of tenancy shall be determined by reference to the time when rent is paid or demanded.

PART TWO explains everything about termination of tenancy, length of notice to quit and how to recover property without crisis. 

Contact the Author:

Twitter: @OkpiBernard

Email: okpibernardadaafu@gmail.com

Phone: +2349032116272

OKPI BERNARD ADAAFU (OBA) ESQ (LL.B, B.L, ACIArb, MCMC) is an Associate at KANU G. AGABI, SAN (CON) & ASSOCIATES, Abuja, Nigeria.

 

 

Reactions: