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In the Twentieth century as urban
populations increased and workers became more specialized, landlord and tenant
law was forced to change. Typical tenants were no longer handy at making
repairs as were tenants in previous years. They worked long hours, they did not
have time to maintain premises and building designs and utilities were more
complex that before. This made some tasks specialized that could only be
carried out by the landlord. The growth of urban population has led to
speculative buildings to satisfy the housing needs of the new population.
Houses are built with inferior materials, without drains or pipes and other
basic amenities sometimes are non-existent.
In examining the laws that have come to
grapple with this new development, the covenants in the tenancy agreements are
also a way to ensure that such defaults are remedied. Most times save in the
case of a furnished apartment, a landlord does not warrant that the demised
premises are or shall be reasonably fit for habitation and in the absence of an
express repairing covenant, he does not covenant that he will do any repairs
during the term. It is of no moment that the required repairs are structural or
internal; that he had no notice of the want of repair. The rule is “caveat
lessee”. As Devlin J proposed: “It is the business of the tenant, if he
does not protect himself by an express warranty, to satisfy himself that
the premises are fit for the purpose for which he wants to have them, whether
that fitness depends upon the state of their structure, the state of the law,
or any other relevant circumstances” This was in the case of ELDER V
AUERBACH (1950) 1 KB 359, 374.
The principle caveat lessee requires
the tenant to examine the premises and decide whether to take them or not. Once
he does the landlord is not taken to warrant that they are fit for habitation.
Under Nigerian Land Law, the lease agreement is such an important document
between the landlord and the tenant. Under the respective Tenancy laws of
Nigeria, in most Tenancy agreements there are express provisions stipulating
theses rights and duties and this is what is termed as “covenants”. A covenant
is a promise under seal, enforceable according to the law of contract. That is,
it is a formal promise or agreement in a contract that sets out the rights and
duties of the parties to the agreement.
There are three (3) types of covenants
that should be in a standard lease namely:
- Implied
Covenants;
Implied covenant that the house if fit for inhabitation – The
general rule is that the tenant must take the property as he finds it. The
landlord is under no implied obligation to repair and he does not
impliedly covenant that the property is fit for purpose for which it is
required. However, where the property is to be a dwelling housing
there is an implied condition that the house is fit for human habitation
at the commencement of the tenancy and implied undertaking by the landlord
to keep it so during the tenancy. The landlord will not be liable
for a breach of this undertaking unless he has notice of the defect,
whether latent or patent.
Usual Covenants; Usual covenants in
leases are those that are proper and common in a lease based on the facts or
evidence presented before the court. What constitutes “usual” covenant in
leases is a question of fact and law. In some jurisdictions what constitute
usual covenants are provided by statute. Some of the covenants classified as
usual covenant are often implied and in some cases expressly stated. What
constitute usual covenants will depend on the custom of the locality, usage,
habit in the trade, or business – Sweet & Maxwell Ltd. v. Universal
Services (1964) 2 Q. B 699; Flexman v. Corbett (1930) 1 Ch. 672.
What constitute usual covenants depend on how the lease agreement is
drafted. One thing to note is that such covenants must be reasonable
and capable of enforcement. Where they are unreasonable the court shall
not enforce such covenants.
Express Covenants; Express covenants are
those terms of the lease agreement which the parties mutually agree upon as
binding on them. Once these clauses are inserted in the agreement, parties are
bound by them. A landlord is obliged to effect external repairs where his
tenant has expressly covenanted to keep the interior in good condition and a
landlord should provide certain basics that are fundamental to a tenant’s
enjoyment of an apartment.
It is equally important to note that
subject to any provision to the contrary in a tenancy agreement, the landlord
shall not disturb the tenant’s quiet and peaceable enjoyment of the premises.
The landlord must pay all rates and charges as stipulated by law, keep the
premises insured against loss or damage, not terminate or restrict the use of a
common facility or service for the use of the premises. The landlord must not
seize any item or property of the tenant or interfere with the tenant’s access
to his property.
It is important to state here under
that in the absence of an express repairing covenant, the landlord is not bound
to effect any repair as the rule is “caveat lessee” which
requires the tenant to examine the premises and decide whether to take or not. Once he takes the
premises, the landlord is not taken to warrant that it is fit for
habitation. The fact that the tenant did not inspect the premises or notice
some defects is irrelevant. It is the business of the tenant to satisfy himself
that the premises are fit for the purpose for which he wants to have them.
However in practice, the landlord owes
a duty to his tenant to perform structural repairs on the premises and maintain
common areas of a building. No tenant can stop payment of rent because the
premises lack basic amenities. The only option open to the tenant is to either
provide it or look for alternative accommodation.
Generally the court will enforce all
agreements entered at arm’s length by adults having capacity provided such
agreements are not contrary to law or public policy, not scandalous and not
immoral. In the absence of express covenant, the obligation is imposed on the
tenant to repair (this is because the landlord under common law is under no
liability to repair any part of the property). In practice, there is a
general obligation imposed on the landlord to carry out structural repairs
(repairs of main parts of the house like main walls, roof, etc.), while the
tenant effect minor repairs (interiors, floors, etc.)
The purpose of this covenant is to
ensure that the property is kept in good condition and to ensure that the value
of the property does not depriciate. BOTH THE LANDLORD AND TENANT have
their respective OBLIGATIONS to repair. – The position of the law
currently is that in the absence of express covenant, the obligation is imposed
on the tenant to repair (this is because the landlord under common law is under
no liability to repair any part of the property). In practice, there is a
general obligation imposed on the landlord to carry out structural repairs
(repairs of main parts of the house like main walls, roof, etc.), while the
tenant effect minor repairs (interiors, floors, etc.) In the case of JAVIN V
FIRST NATIONAL REALITY CORPORATION 428 F2d 1071 (1970) (albeit a US case),
the tenant a withheld rent because their apartment fell in to a seriously
defective state. The first issue the court considered was whether or not the
landlord owed any contractual obligation to his tenants with regard to the
state of the building and secondly whether such duty allowed the tenant to
refuse to pay rent. The court of appeals opined that the
original medevial concept of the lease as a conveyance of an interest in land,
without warranty as to the suitability of buildings upon the land might have
been suitable for an agrarian society, it further stated that the 19th century
economic liberalism – freedom of contract- must be trimmed down to fit the
requirements of present day society. A covenant to repair imposes an
obligation on the person covenanting to put the premises into repair even if
they are in a state of disrepair at the start of the lease – Payne v.
Haine (1847) 16 M & W 541 at 545, and to ensure that they do not
thereafter fall into a state of disrepair – Proudfoot v. Hart (1890) 25
Q. B. D 50.
Nigerian courts can be inclined to
follow such decisions and it can be safe to say that; for the purpose of
determining the obligation to repair, the parts of the building are classified
under law to determine which parts a Landlord and a Tenant is obligated to
repair.
A. STRUCTURAL PARTS: E.g Foundation, Roof, Drainages, Walls etc. In
short anything that has to do with the structural parts of a building is under
the obligation of the landlord to repair compulsorily.
B. COMMON PARTS: E.g Stair case, lifts etc (These are parts that
deal with common places in the house that adjoins the property together for
common Use)
C. INTERIOR: Door, Windows, Cupboards, Sinks etc (These deal with
the interior of the house and it’s your duty to repair them because you use it
for your own convenience).
So in short, the Landlord repairs the
Common and Structural Parts while you the Tenant repairs the Interior parts.
Now if the
Landlord has defaulted in repairing his own parts, the remedy open to one in
law is to give notice of repair, demand for Specific performance to repair or
when you move out seek for damages in respect of refund of the money spent.
Such covenants must be expressly written in the tenancy agreement.
In
the case of SEVEN-UP BOTTLING COMPANY V. MR. OLUMUYIWA PETER AKINWARE, in the
tenancy agreement, the (2011) LPELR-CA/AE/10/2010 an appeal against the
decision of the High Court of Justice, Ekiti State presided over by Hon.
Justice M.O. Bodunde delivered on the 25th January, 2007 granting the reliefs
sought by the Respondent save for the relief for special damages which he found
not proved and also an order repossession of the demised properties with
immediate effect. In the tenancy agreement the Lessor indeed covenanted to:
1. To keep the structure
in good repair including boundary fences and roadways and to be responsible for
external decoration.
2. To ensure the
property against fire, tornado, wind, storm and earthquake, and to refund the
rent already paid for the unexpired period of the tenancy in the event that the
house becomes unfit for habitation by reason of fire, tornado, wind, storm,
earthquake or other fault or defect.
In such an instance failure of
the landlord to abide by such express covenants will give the tenant a right to
enforce such action in the courts.
For example Under the Tenancy Laws
of Lagos State 2011 Section 7 states the Obligations of the Landlord are
stated …
1. Subject to any
provision to the contrary in the agreement between the parties, the landlord
shall be obliged to do the following:
(1) Not to disturb the tenant’s quiet
and peaceable enjoyment of the premises.
(2) Pay all rates and charges as
stipulated by law.
(3) Keep the premises insured against
loss or damage.
(4) Not to terminate or restrict a
common facility or service for the use of the premises.
(5) Not to seize or interfere with the
tenant’s access to his personal property.
(6) Effect repairs and maintain the
external and common parts of the premises.
1. Obligations of
landlord regarding business premises only
Subject to any provision to the
contrary in the agreement between the parties, a business premises agreement
shall be taken to provide that where the landlord
(a) inhibits the access of the tenant
to the premises in any substantial manner;
(b) takes any action that would
substantially alter or inhibit the flow of the customers, clients or other
persons using the tenant’s business premises;
(c) causes or fails to make reasonable
efforts to prevent or remove any disruption to trading or use within the
business premises which results in loss of profits to the tenant;
(d) fails to have rectify as soon as
practicable, any breakdown of plant or equipment under his care and maintenance
which results in loss of profits to the tenant; or
(e) fails to maintain or repaint the
exterior or the common parts of the building or buildings of which the premises
is comprised and after being given notice in writing by the tenant requiring
him to rectify the matter, does not do so within such time as is reasonably
practicable, the landlord, is liable to pay to the tenant such reasonable
compensation as shall be determined by the Court, where the tenant effects the
repairs or maintenance.
In
the case of UNILIFE DEVELOPMENT CO. LTD. V. MR. KOLU ADESHIGBIN & ORS
(2001) 4 nwlr(pt.704)609.
The honorable court noted
evidently saying… “It is unquestionably clear that what was demised was
bare land. It is equally beyond doubt that having regard to clauses 3,4,5 and 6
that buildings of prefixed descriptions were to be erected and kept in good and
substantial repair,”
In the case of ALHAJI USMAN DANTATA
& ANOR V. MOUKTAR MOHAMMED (2000) 5 iLAW/SC.105/1997 the
court said inter alia…“The broad general principle of law is contained
in the old Latin maxim: “Ubi jus ibi remedium. Jus here signifies
the legal authority to do or demand something and Remedium here means the right
of action of the means given by law for the recovery of the declaration or
assertion of that right. In other words, the maxim presupposes that wherever
the law gives a right, it also gives remedy, that remedy must be founded on a
legal right.”(italics is for emphasis.) See also Bello & 13 Ors. v. A.
G. Oyo State (1986) 5 NWLR (Part 45) 828.
Applying the above to the instant
case, it is in my view clear that the Plaintiff does indeed have a right to the
relief sought. This is the more so as the issue raised in these reliefs is the
Agreement purportedly entered into by the parties, the basis of which the
Defendants are seeking to alienate his (Plaintiff’s right to his property at
Turnbull Road (now Jabita Close). Indeed, I hold the firm view that the
Plaintiff is entitled to some remedy although not nullification. See Egbuche v.
Idigo 11 (1934) NLR 140. Clearly, there are other remedies open to him in the
event of a breach of contract e.g. rescission of the contract or specific
performance while being careful not to be time-barred. See Odusoga v. Ricketts
(1997) 7 NWLR (Pt. 511) 1 at 1617. By a long line of decided cases. it has been
established particularly in Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46 at
60-61, that declaratory judgments being equitable remedies are discretionary
remedies which should be exercised judicially and judiciously.
In the instant case. the Plaintiff, in
my view, is entitled to the declaratory reliefs sought both in law and in
equity.
Professor Emeka Chianu who wrote the
book LAW OF LAND LORD AND TENANT precisely at page 168 of the text
has also opined thus; “In consideration of the scope and extent of
applications of its provisions and pronouncements, the court should consider
such factors as: does the defect affect a vital facility, does it touch on
safety and sanitation, the age of the building, how long the defect lasted, how
much the tenant pays as rent, e.t.c. If judges are unwilling to extend the
landlords duty to keep premises in habitable state to all tenancies, it should
at least apply it to periodic tenants; also small dwellings. Social justice as
well as economic expediency dictates this. This class of tenants is victim of
most substandard of substandard housing.”
by Rosemond Phil-Othihiwa
originally published on linkedin.com
