By Eloghene Adaka, Esq.
Lots of disputes which arise in a tenancy agreement are as a result of the negative consequences of both parties not being aware of their rights. It is a well-known saying that ignorance of the law is not an excuse. Therefore, in today’s column, we would be discussing the common rights of a landlord which he ought to know and his duties and obligations which he ought to carry out. This is to prevent future disputes which may arise due to his actions in a tenancy agreement. We will also touch on remedies he is entitled to if any of his rightsare breached by a tenant.
The Black’s Law dictionary defines a Landlord as an owner of an estate in land or rental property who has leased it to another person called the tenant.
In COKER V ADETAYO&ORS (1992)LPELR 15369(CA) the court held that:
“By S.40 of theRent Control and Recovery of Residential Premises Edict No.9 of 1976 a “landlord” is defined as follows:- “Landlord in relation to any premises means the person entitled to the immediate reversion of the premises or if the property therein is held in joint tenancy or tenancy in common, any of the persons entitled to the immediate reversion and includes:- (a) the attorney or agent of any such landlord…” Per UBAEZONU, J.C.A. (P. 22, paras. E-G)
THE RIGHTS OF A LANDLORD INCLUDE:
1. Right To Receive Rent:
The Supreme Court inODUYE V NIGERIAN AIRWAYS LTD(1987 LPELR -2264(S.C.) defined rent and it held that:
Generally speaking, rent is the recompense paid by the tenant to the landlord for the exclusive possession of corporeal hereditament. The modern conception of rent is that it is a payment which a tenant is bound by contract to make to his landlord for the use of the property let.
It’s important to note that rent is not an essential for a lease to be valid.There can be a valid lease without payment of rent.Where a landlord desires to collect rent from the tenant, there must be a clause or an agreementwhich would contain the amount of rent and the period which the rent would cover.
Rent should be made an essential requirement in the agreement as the court will presume the subsistence of a lease agreement between the parties even without the payment of rent. (OSHO V. FOREIGN FINANCE CORPORATION)
Under s. 7(1) Tenancy Law Lagos, the law provides that subject to any provision to the contrary in the tenancy agreement, the tenant shall pay the rents at the times and in the manner provided. This is a right attached to a landlord as the tenant ought to pay him for the use and occupation of his premises.Thiscould be in form of money or money’s worth. The manner in which the rent is payed determines the type of tenancy which could bemonthly, quarterly, or yearly. This also determines the type of quit notice which could be given to the tenant.
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Rent is usually paid in arrears.Once the parties have agreed as to the sum to be paid, neither of the parties can unilaterally alter it.(YAHAYA V. CHUKWUMA (2002)3 NWLR (PT 753) 20)
Remedies For Failure To Pay Rent Include:
- An action in court to recover the money.
- An action in distress. This is the seizure of the lessee’s goods to satisfy the rent without going to court.
- An action for forfeiture where this is contained in the lease.
- A claim for mesne profit against a tenant at sufferance (which is amount payable after a tenancy has expired and the appropriate notices have been served while the tenant still lived on the premises.)
2. Right To Not To Accept Or Receive Rent In Excess:
According to the law, rent can be paid in advance subject to the agreement between the parties and the law regulating tenancy in a particular state. Rent can also be paid in premium which is a lump payment in addition to periodic rent in consideration of a reduced rent. In several states,this is prohibited.Landlords attempt to circumvent the prohibition of the premium,by charging rent in advance for many years. Lagos prohibits payment of rent in advance. Section 4 of the Tenancy Law of Lagos Statemakes it unlawful for a tenant to pay in excess of one year for a yearly tenant, and a monthly tenant to pay in excess of 6 months. It’s also unlawful for a landlord to suggest or accept such an offer. The lawprescribesa fine of ₦100,000 (one hundred thousand naira) only, or three months imprisonment or both for a tenant or landlord who breaches this law.
Legal Consequences For Rents Paid In Advance
a. Inflation:A lessor who collects many years rent in advance maybe at a disadvantage as the value of the money may be greatly reduced as a result of inflation.
b. Tax Implications:Rent collected in advance for more than 5 years is subject to taxation as income. (S.(2)(c) Income Tax Management Act, S. 3(2) c-Personal Income Tax Act,2004)
3. Right To Review Rent:
A landlord has the right to input in a tenancy agreement a rent review clause which allows the rent of the property to be reviewed periodically.It is important to insert a rent review clause in a lease especiallyif the term of years granted is a long one.The rent review clause is inserted in a lease to cushion inflation and maintain the economic value of investment. It is worthy to note that in the absence of a rent review clause, the lessor cannot unilaterally change the agreed rent. The right to review must be expressed as a condition in an agreement and where such clause is absent in the tenancy agreement the court may adjudge a fair market or reasonable rent as it deems fit. (UNILIFE DEVELOPMENT CORP. V.ADESHIGBIN)
The main purpose of the rent review clause use is to enable the landlord keep up with the prevailing market rent of his property as the value of the property appreciates.
Contents of a rent review clause:
a.Mode of initiating the review. An example is the issuance of a notice and the duration of such notice.
b. Time to initiate the review.
c. New rent calculation method.
d. Procedure for dispute resolution concerning the new rent.
4. Right To Carry Out Periodic Inspection:
A landlord has a duty to ensure that his tenant gets a quiet and peaceful enjoyment of the property. Immediately a tenancy agreement comes to life, the right to peaceful enjoyment commences.In situations where a landlord without permission steps into the property of the tenant without prior consent,the landlord can be sued for trespass by the tenant.
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The landlord can however supervise a property in possession of a tenant in order to ensure that it’s in good condition. The landlord can carry out routine checks on the property with the prior notice,consent, and knowledge of the tenant.This must be done within reasonable hoursand in line with the tenancy agreement.
Section 7(4) of the Tenancy Law provides that subject to the Tenancy Law, the tenant shall permit the landlord and/or his agent during the tenancy onall reasonable grounds in the day time and after previous written notice to view the condition of the premises and effect repairs that are necessary.
5. Duty To Keep Premises In Habitable State
Repairs mean the replacement of subsidiary parts of the premises.There arevarious types of repairs likestructural/major repairs, minor repairs, repair of commonly used parts, etc.
The landlord is to undertake structural or major repairs and the commonly used parts like staircase, elevator, gate. The tenant is to undertake the repair of minor or interior/internal parts like locks, sewage, plumbing work, wardrobes and electrical appliances. In the absence of an express covenant to repair, the obligation to repair is imposed on the tenant.
Where it is a long lease, the landlord can do structural repairswhile the tenantbears the responsibility for internal repairs. Where it is a short lease, the landlord will bear the costs of commonly used parts and external structures.(Ss. 64 & 65 (f – g) REGISTERED LAND LAW LAGOS)
Where it is the responsibility of the landlord to carry out repairs, in the case of a fixed tenancy the tenant ought to inform (notice of repair) the landlord.(DEMUREN v PLASTIC MANUFACTURING CO. LTD.6 CCHCJ)
Subject to the tenancy agreement, in the absence of an express covenant to repair, the obligation to repair is imposed on the tenant. The tenant is relieved from liability to repair if the disrepair or dilapidation results from the operation of wear and tear.
The landlord can effect repairs and sue for money spent on them. In Lurcott v. Wakely & Wheeler, the repair which was to be made by the tenant was done by the landlord. In the landlord’s action for money spent, the court found the tenant liable to pay for money spent by the landlord
Section 8(iv) of the Tenancy Law of Lagos provides that the landlord shall effect repairs and maintain the external and common parts of the premises.
Remedies for Breach of Covenant to Repair
This is determined by whether or not the tenant is in possession. Where the tenant is in possession, the landlord can:
a. Serve him a notice to repair.
b. Seek an order for forfeiture and re-entry, where there is a continuous default.
c. Take an action for specific performance to repair the property.
d. Take an action for damages for breach of covenant.
In a situation where a tenant feels the landlord owes him after making repairs which are structural and a disputeoccurs, the landlord has no right to reimburse a tenant except the repair is covered in their initial agreement.
6. Right To Renew:
A landlord has the right to include in the tenancy agreement an option to renew clause. This gives thetenant the option to express his interest in taking out the demised premises for another term of years as lease by notifying the landlord on time on such terms as may be agreedby bothparties.The main reason for this is to prevent the drafting of a new Deed of Lease or Tenancy Agreement,helps to secure lessee’s interest in the propertyat the end of the subsisting lease, and assists lessee to recoup part of his expenses or maximize his use of the improvements in respect of the property.
Contents Of The Option To Renew Clause
a. Time within which the application is to be made (3 months or six months)
b. Manner of the exercise (usually in writing)
c. Condition precedent to be fulfilled before exercise of the option
d. The terms of the new lease.
7. Duty To Pay All Tenement Rates And Charges Stipulated By Law:
In a tenancy relationship we have two types of rates. These are recurrent rates and non-recurrentrates. Usually, recurrent rates are outgoings bills like light bills, waste disposal bills, etc. These are to be paid by the tenant. Non-recurrent bills like fixing of electric poles, etc are to be paid by the lessor/landlord.
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Where there is no express covenant on who is to pay the rates and outgoings, section 7 (2) of the Tenancy Law of Lagos will apply and the tenant is to make all payment on rates and outgoings that the landlord is not legally obliged to pay while in other States either the provision of the State law on Tenancy or the Common Law rule will apply.
The landlord hasthe duty to pay taxes stipulated by law like ground rent, land use charge, etc. A tenant can sue the landlord for damages in the event that the property is sealed as a result of the charges or taxes stipulated by law that were notpaid.For most tenancy relationships, the opposite is now the case as many landlord’s unlawfully transfer this duty to the tenant.
A tenancy agreement, however, can specify which parties are to pay what rate.
8. Right To Sue For Mesne Profit:
Mesne profit is the amount payable by the tenant to a landlord after the expiration of the tenancy while the tenant retains the premises. Where a landlord has served on the tenant all the appropriate notices and a tenant holds over the premises after the duration had elapsed,the landlord has the right to sue for mesne profit. This is for all the days the tenant held over after the tenancy had come to an end.
9. Duty Not To Seize The Personal Property Of The Tenant Or Hinder Access To His Personal Property:
A landlord has a duty not to result to self-help in settling disputes between the tenant and himself. It is advisable to always approach the court especially in recovery of possession or premises.A tenant can sue a landlord if self-help was used toevicthim out of the premises.
Also, a landlord should be wary of destroying or seizing a tenant’s personal property as the tenant has the power to sue for conversion, detinue, or trespass in such situations.
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.
