- Introduction
This piece seeks to draw attention to some noteworthy aspects of the Tenancy Law and explain the settled law on frequently disputed aspects of the law of landlord and tenant.
- Scope of the law
The law applies to all premises within Lagos State including business and residential premises but excluding properties in Ikoyi, Victoria Island, Ikeja GRA and Apapa. However, the law does not apply to:
- Residential premises owned or operated by an educational institution for its staff and students;
- Residential premises provided for emergency shelter;
- Residential premises used as a care or hospice facility,
- Residential premises used as a public or private hospital.
- Rent
3.1 Criminal offence
Section 4 of the Tenancy Law makes it unlawful for a landlord to demand from or for a sitting tenant to pay rent in excess of six (6) months from a monthly tenant or (1) one year from a yearly tenant. Section 4 also makes it unlawful for a landlord to demand from or for a new tenant to pay rent in excess of one (1) year in respect of any premises. The section also makes it a criminal offence for a tenant to pay or a landlord to receive rent in excess of that stipulated by the law.
3.2 Mesne profit
Mesne profit is money due from a tenant who holds over the premises after the expiration of the notice to quit. During the period of the notice to quit the tenant is a protected or statutory tenant but from the date of the expiration of the notice to quit the tenant becomes a trespasser in unlawful possession. In Chaka v Aerobell (2012), the Court of Appeal held that the term mesne profits is the income or profit of an estate due from a tenant in unlawful possession between two dates. A claim for mesne profits cannot be made when the occupier is still a tenant and his tenancy has not been duly determined according to law.
3.3 Rent increase
3.3.1 The law frowns on excessive increase in rent. Section 37 of the Tenancy Law states that a sitting tenant may apply to the court for a declaration that any increase in rent is unreasonable. The court shall consider the general level of rent in the locality or any special circumstances relating to the premises and order that the increase in the rent be changed to a specific amount.
3.3.2 There is judicial authority that a landlord cannot unilaterally increase rent. Where there is no agreement on an increase in rent the status quo ought to be maintained and this means that the agreed rent should therefore subsist. If the tenant refuses to pay a landlord the proposed rent increase the remedy of the landlord is to serve a notice to quit and take steps as required by law to terminate the tenancy. In Cobra Limited v Omole Estates (2000) the Court of Appeal held that,
“The issue of rent between the landlord and tenant is a matter of agreement. The agreement may be express or implied. The relationship between them too is a contractual one and being a matter of contract its term cannot be altered by either party without the agreement of the other. Unless the landlord and the tenant are ad idem a landlord’s unilateral decision to increase the amount of rent payable will be ineffective. A unilateral increase of rent is an offer or a proposal made by the landlord.”
- Structural Alterations/Improvements
4.1 Section 6(2) of the Tenancy Law states that where a tenant with the previous consent in writing of the landlord effects improvements on the premises and the landlord terminates the tenancy, such a tenant shall be entitled to claim compensation for the effected improvement on quitting the premises. Therefore, the advice is to always obtain the consent of the landlord when making substantial alterations or improvements to the premises. In Bocas v Wemabod (2016) the Court of Appeal held that,
“The tenant is obliged to pay his rent as and when due. But all is not lost, he can set-off, in his landlord’s action, a claim for money expended to effect any repairs the landlord was under an obligation to effect, on the following conditions; He must prove that he informed his landlord of the disrepair; He gave him reasonable time to effect the repair; The repair he effected is of good quality; and The sum he expended to effect the repair is reasonable. British Anzani (Felixstowe) Ltd. v. Int Marine Management (UK) Ltd. (1979) 2 All E.R. 1063 (at P.186 of Chianu’s Book) where Forbes, J., held – “There are at least two sets of circumstances in which at common law there can be a set-off against rent; One where the tenant expends money on repairs to the demised premises, which the landlord has covenanted to carry out, but in breach has failed to do so; and The other where the tenant has paid money at the request of the landlord in respect of some obligation of the landlord connected with the land demised. To this proposition there must be added two riders. First, that as the landlords obligation to repair premises demised does not arise until the tenant has notified him of want of repair, such notification must have been given before the set-off can arise; and secondly that the set-off must be for a sum, which is not to be regarded as unliquidated damages, that is it is a sum certain, which has actually been paid and in addition, its quantum has either been acknowledged by the landlord or in some other way can no longer be disputed by him.”
See also, Dike v Aduba (2016),
4.2 Where the landlord refuses to effect repairs agreed before or at the commencement of the tenancy or arising during the course of the tenancy, the tenant cannot refuse to pay rent until the repairs are carried out because the duty to pay rent is separate from and independent of the obligation to repair. Again in Bocas v Wemabod (2016) the Court of Appeal held that,
“In other words, a tenant is not at liberty to engage in a rent strike because its covenant to pay rent is independent of the landlord’s obligation to effect repairs – see Oke V. Salako (1972) 11 CCHCJ 88, wherein Kassim, J. held – A tenant’s covenant to pay rent is independent of the landlord’s covenant to repair the premises; the tenant is not discharged from his obligation to pay rent merely because his landlord is unwilling to fulfill his obligation to repair? See also Lee-Parker v. Izzet [1991] 3 All ER 1097, where Goff J. declared – So far as the repairs are within the express or implied covenants of the landlord the Defendants are entitled to recoup themselves out of future rents and defend any action for payment thereof.”
- Business premises
Section 9 of the Tenancy Law states that where the landlord fails to do any of the following things; (i) 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 (ii) fails to maintain or repaint the exterior of the common parts of the building after due notice in writing by the tenant; or (iii) inhibits the access of the tenant or customers or clients of the tenant to the premises; the landlord shall be liable to pay to the tenant such reasonable compensation as shall be determined by the court.
- Recovery of possession
6.1 Notice to quit
The sixth note is about notices to quit. Section 13 of the Tenancy law states that the following notices shall be required to terminate a tenancy; (i) in the case of a monthly tenancy, one (1) month notice to quit; or (ii) in the case of a yearly or annual tenancy six (6) months notice to quit; or (iii) in the case of a tenancy for a fixed term of years at the end of the tenancy only seven (7) days notice is required.
6.2 Procedure
A landlord cannot eject a tenant without a court order. In order to obtain an order for recovery of possession the landlord must first satisfy the conditions precedent to bringing the action by serving the required statutory notices on the tenant. In Ihenacho v Uzochukwu (1997), the Supreme Court (per Iguh JSC) held that,
“A landlord desiring to recover possession of premises let to his tenant shall firstly; unless the tenancy has already expired, determine the tenancy by service on the defendant of an appropriate notice to quit. On the determination of the tenancy, he shall serve the tenant with the statutory notice of his intention to apply to the court to recover possession of the premises. Thereafter the landlord shall file his action in court and may only proceed to recover possession of the premises according to law in terms of the judgment of court in the action. Where a landlord fails or ignores to obtain an appropriate order of court for possession after due hearing or enters the premises and takes the same without the said order of court, the landlord has invaded and committed an infraction of the rights of the tenant and renders himself liable in trespass.”
- Unlawful ejection: Self help
7.1 Criminal offence
The tenth note is about unlawful ejection of the tenants. Section 44 of the Tenancy Law states that any person who without a court order, demolishes or damages or modifies a building in order to eject a tenant or attempts to forcibly eject a tenant or threatens or molests a tenant by action or words shall be guilty of an offence and is liable to a maximum fine of N250,000.00 (Two Hundred and Fifty Thousand Naira) or a maximum sentence of six (6) months imprisonment.
7.2 Judicial authority
In Akinkugbe v Ewulum Holdings (2008), the landlord had forcefully ejected tenants out of their rented premises and the trial court awarded N3m as aggravated damages against the landlord for trespass. The Supreme Court affirmed the decision and held (per Aderemi JSC) that,
“A landlord who resorts to self help in a bid to recover possession of the premises tenanted by him runs foul of the law and is liable in damages.”
- Mediation
The provisions of sections 30 and 32 of the Tenancy Law now permit any party, whether landlord or tenant to use arbitration or mediation as a means of settlement of disputes in tenancy matters and an arbitration award or mediation agreement shall upon registration be enforceable as a judgment of court. A landlord or tenant can now approach the various Citizens Mediation Centers to file a petition and schedule mediation.
- Leases
9.1 A lease is different from a tenancy and has different legal consequences. In Odutola v Papersack (2006) the Supreme Court set out the basic requirements of a lease. Tobi JSC said,
“And what is more, a lease is an exact legal transaction affecting an estate and the law requires some basic requirements. They are (1) The words of demise. (2) The agreement must be complete. (3) The lessor and the lessee must be clearly identified. (4) The premises and dimensions of the property to be leased must be stated clearly. (5) The commencement and duration of the term of the lease must also be clearly stated. See Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt.184) 157.” See also, Nlewedim v. Uduma (1995) 6 NWLR (Pt.402) 383, UBA v Tejumola (1989).
- The above terms will be strictly enforced to conclude the existence of a lease. In UBA v Tejumola (1988), the parties entered into negotiations for a lease and Tejumola accepted the lease of the premises to UBA for a term of 15 years. No lease agreement was signed but UBA took possession of the premises on 1st May 1982. The Supreme Court held that in the absence of an agreed commencement date no contract for lease was concluded between the parties.
Jide Bodede LL.M(Lond)
08035130694
