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.