By Eloghene Adaka Esq
Tenancy agreement is a contract, whether written or oral, which contains certain terms, and the Rights and Obligations of both the landlord and the tenant. Such an agreement could be expressed or implied between a landlord and a tenant regarding temporary possession of premises which is subject to reversion.
In a tenancy agreement, there are rights which automatically accrue to the tenant, which, even if not stated in a tenancy agreement are implied by law.
Being ignorant of these laws, however, can lead to abuse and violation of such rights by caretakers or lanlords .
The law which regulates tenancy relationship in Nigeria provides for rights and duties which guide such relationship. It also prescribes remedies when such rights are breached. This write up would elaborate and explain briefly some of the rights of the tenant in a tenancy agreement .
(1) Right To A Written Agreement:
A tenancy agreement can be oral or written or by deed. The law provides that tenancy agreements above 3 years must be by deed and a lease agreement for a duration of three years and below can be written or oral.
In a tenancy agreement its wise for a tenant to always insist on having a written agreement as the terms are clearly stated, ascertained and enforceable in the event of any unforeseen circumstances which may arise. It’s pertinent to note that where there is no tenancy agreement between the landlord and the tenant, such a relationship would be governed by the specific Tenancy law of the State where both parties are resident.
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Oral tenancy agreements are valid but can only be used where the tenancy agreement is three years and below, as seen in the case of Erhunmunse v Ehanire (1998) LPELR/6459(CA) were the court held that;
“A relationship of landlord and tenant is brought into being by an agreement between the landlord and the tenant, which agreement may be expressed or implied. Similarly, there is nothing wrong in relying on an oral tenancy agreement where the parties are ad idem. Pan Asian African Co. Ltd v. NICON Ltd (1982) 9 SC I. “PER ROWLAND, J.C.A.(P.8, Paras. B-C)
Not having a tenancy agreement can however pose issues between parties which can create misinterpretation between both parties therefore making it difficult in settling disputes that may arise between both parties.
As a party alleging a fact, you would have to show proof of such agreements. In proving such oral tenancy agreement, a party alleging any fact has to prove such agreement. Odutola v. Papersack (Nig.) Ltd. (2007) All FWLR (Pt. 350) 1214.
It’s however preferable to have a tenancy agreement in a written form. This sets out the terms and obligations and serves as evidence of the obligation which would spell out how future disputes are handled.
A written agreement is also enforceable as there is no burden of proving the terms of the contract.
A tenant should always look out for and insist on a written agreement as it is vital because it sets the terms and obligations of both parties and spells out how future disputes are to be resolved.
In UNION BANK OF NIGERIA PLC V. AJABULE (2012) ALL FWLR (PT 611) 1413, it was held as follows: “a written contract agreement entered into by parties is binding on them. Where there is any disagreement between the parties on such written agreement or on any particular point, the only reliable evidence to resolve the claim is the written contract of the parties. The reason being that where the intention of the parties to a contract is clearly expressed in a document, the court cannot go outside the document in search of other documents not forming part of the intention of the parties”. The law is settled that a dispute arising from tenancy that is regulated by instrument or deed or agreement between parties is resolved by reference to the instrument or agreement regulating the tenancy rather than by
statute.
(2) Right To Receipt Of Payment:
A receipt is a proof of payment. It is a document that outlines the amount received and gives the basis of the transaction. In the Supreme Court case of Emavworhe Etajata & ORS v Peter Igbini Ologbo & Anor (2007) LPELR-1171SC, a receipt was defined to be a document or a piece of paper which signifies that goods or services have been paid for. It’s an evidence of payment and constitutes a receipt. There must be a person to receive and a person from whom it is received and the something received by the former from the latter and that something must be a sum of money per Muhammad jSC.
Once rent has been paid, a tenant is entitled to be issued with receipt of payment which shows proof of payment to the lanlord and serves as an acknowledgement of the tenancy agreement entered into by both parties. The receipt contains the name of both parties, the amount paid as rent, and the date such payment was made. It also contains the signature of the tenant, the duration of the tenancy, and a precise location of the property being paid for. It is however an offence in Lagos state under the Lagos State Tenancy Law for a landlord to fail to issue out a receipt of payment. This Right is provided for by Section 5 of the Tenancy Law of Lagos State. It prescribes a fine of N100000 (one hundred thousand naira) for any landlord who fails to issue out a receipt.
The importance of the receipt is to prevent a landlord from denying receiving any payment, especially, when such payment was not done through the bank. It also assists the court in determining when the tenancy began, especially when issues arise and also in calculating Mense profit when a tenancy has terminated.
(3) Right To Peaceful Enjoyment:
This is an implied term. Even if it is not stated in the terms of agreement, it is still binding on the parties. A tenant has the right to exclusive possession and enjoyment of the property. Exclusive possession is the right of a tenant to exclude all other people including the landlord and their agents from the leased property during the pendency of the lease or tenancy agreement. It’s an essential to the requirements of a lease and without exclusive possession.
It signifies physical occupation of the land where there is, however, no lease. This right prevents and covers a tenant against forceful ejection and interference from any one including the landlord while the tenancy subsists. Even where a tenancy expires or a tenant breaches some of the terms and conditions, this right may still subsist in favor of a tenant. It can also be determined by procedure prescribed by law as held in Oni v Dada (1957 SCMLR 258. Also, it was held by the Supreme Court that: “Even if a tenant commits a breach of his agreement with his landlord, it does not justify the landlord taking the laws into his own hands by summarily terminating the tenancy or unlawfully ejecting the tenant.” See also Elochin Ltd. v. Mbadiwe (1986) 1 NWLR (14) 47 at 60; Iheanacho v. Uzochukwu (977) 1 SCNJ,
However, a landlord can come for inspection of the property in order to inspect and carry out repairs. Where he has covenanted to undertake repairs, there is a specific agreement that the landlord can come for inspection of the property where he covenants to undertakes repairs. In a situation where a tenant’s right to peaceful enjoyment of a property has been breached, he can institute an action for trespass.
(4) Right To Institute An Action For Trespass:
Trespass is entering another person’s property without permission of the owner or legal authority or the legal right to be there. It can be interfering with the tenant’s use of the property without his consent and could include even dumping waste, etc, or without the legal right to be there.
A tenant can sue any one including a landlord for entering into his property without his consent. It is immaterial if no harm is done as far as there is an unlawful entry, an action can be brought as seen in the Supreme Court case of OKOLO v. UZOKA (1978) LPELR-2469(SC), the court held that,
“A tenant in occupation, can sue for trespass to the land but not the landlord except in cases of injury to the reversion, Per FATAYI-WILLIAMS, J.S.C. (P. 16, paras. A-D)
The reason for all of these rules is that the action of trespass exists to prevent breaches of the peace by protecting the quiet possession of the real property.
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In a trespass action, the plaintiff does not have to show that the defendant intended to trespass but only that she intended to do whatever caused the trespass. It is no excuse that the trespasser mistakenly believed that she was not doing wrong or that she did not understand.
(5) Right To Reject Unreasonable Increase Of Rent:
Rent is the consideration paid by the tenant for the use and enjoyment of the landlord’s property.
Due to inflation, a landlord can decide to increase the rent paid in the property as he wishes. However, it must be in line with the Rent review clause which is inserted in the tenancy agreement to enable the landlord to take advantage of the prevailing market rate of the property.
A RENT REVIEW CLAUSE in a tenancy allows for the rent of the property to be reviewed periodically so the new increment does not affect a tenant during an existing tenancy. It must contain,
(a) The time to initiate the review,
(B)The method of calculating the new rent, and
(C) Procedure for dispute resolution concerning the new rent.
A tenant, however, has the right to institute an action in court for an order declaring that the rent increase is unreasonable and if the court is satisfied that the increase is unreasonable it may grant an order for the rent to be reduced as provided under section 37 of the Tenancy Law of Lagos State.
Eloghene Adaka Esq is a weekly columnist on Legal Corner with NIGER DELTA TODAY (NDT). She can be reached at adakaelo@gmail.com for further clarification or questions on legal issues.
