LANDLORDS AND TENANT
1.0		INTRODUCTION.
2.0		OBJECTIVE
3.0		EXPRESS COVENANTS
4.0		IMPLIED COVENANTS
5.0		ENFORCEMENT OF COVENANTS
6.0		RECOVERY OF PREMISES
7.0		MODE OF TERMINATION OF TENANCY
8.0		LENGTH OF NOTICE REQUIRED
9.0		EFFECT OF INVALID NOTICE
10.0		MESNE PROFIT
11.0		DETERMINATION OF SURRENDER
12.0		CONCLUSION
13.0		SUMMARY
14.0		TUTOR MARKED ASSIGNMENT
15.0		SUGGESTED FURTHER READING

STATUTE

LEASEHOLD INTERESTS

LANDLORDS AND TENANT

          INTRODUCTION.

Rights and liabilities accruing to parties in a tenancy agreement is dependent on the tenor of the agreement. A tenancy contract is an embodiment of express and implied covenants which regulates the rights and obligations of the parties.

OBJECTIVE

The objective of this unit is to expose to the students to those  issues a tenancy agreement may expressly as well as the rights and obligations of the parties which may not be expressly stated but is implied by the contract.

EXPRESS COVENANTS

Express covenants are terms of occupation of the land which are unequivocally stated in the tenancy agreement. Both the landlord and the tenant are both to comply with them.

The regular covenant the landlord is bound by include covenant to carry out repairs on the property and the covenant to confer on the tenant quiet enjoyment of the demised premised

The tenant is expected to enter the following covenants

• To pay rent
• To pay rates and taxes
• To repair the demised property
• Not to alter the demised premises without the landlord’s consent
• Not to assign or sublet the property without the knowledge or consent of the landlord
• To insure the property against fire

In Taylor v Webb (1937) 2 KB 283 there was a covenant to keep premises “in good and tenantable state”. Destruction or damage by fire and fair wear and tear were however excepted when the states of the roof of the house cracked and slipped from their position as a result of natural causes. It was held that the exception from the covenant of “fair, wear and tear” excluded liability under the covenant of repair.

In Sogbesan v George (1941) 16 NLR 10 it was held that a tenant may waive his right to enforce his landlord’s covenants to repair and to make premises fit for human habitation

• Where an absolute or unconditional prohibition is imposed upon the tenant a breach of it renders the tenant liable to pay damages to the landlord even where the assignment is not prejudicial to the landlord’s interests. If qualified a conditional prohibition is imposed upon the tenant against an assignment without the landlord’s consent. The lessee’s liability will depend on whether or not he has asked for the lessor’s consent before making the assignment

Where no prior consent has been requested, the tenant is liable to pay damages and if a right of re – entry is inserted in the lease, he is liable to forfeit the lease.

In Barrow v Isaac & Sons (1891) 1QB 417 the lessee covenanted not to underlet the premises or part with its possession without the landlord’s consent in writing which consent the lessor agreed would not be arbitrarily withheld in the case of a respectable  or responsible person. The lessor reserved the right of re-entry in the event of a breach of the covenant. When the lessee underlet part of the premises without the landlords consent, the court held that the lessor was entitled to recover possession of the premises.

IMPLIED COVENANTS

Where in a tenancy agreement, no express covenants have been inserted, the following covenants are usually imposed on landlords and tenants. They are binding and enforceable

THE LANDLORD IS OBLIGATED TO GRANT

• A covenant for quiet In Markham v Paget (1908)  CH 697, the principle was established that whether or not the word “demised” has been mentioned in the lease, the landlord is deemed to be under covenant that his tenant should enjoy his tenancy without any disturbance or interruption by either the landlord or his agent or anyone deriving title through the landlord.

• A warranty that the premises are reasonably fit for human habitation at the beginning of the tenancy. In Smith v Marable (1843) 11 M&W 5. a house infested with bugs was held not to be fit for human

In Wilson v Finch – Hatton, a defective drainage was held to render a house unfit for human habitation.

• A covenant not to derogate from his grant In Aldin v Clark (1894) CH 437 the landlord’s new building on adjoining land which interrupted the free flow of air to the tenant’s premises was held to be a derogation from his grant.

THE TENANTS COVENANT

The tenants covenant to

• To pay rent
• To pay rates and taxes
• To repair
• Not to sublet the property

This is however subject to the doctrine of waste.

WHAT IS WASTE?

Waste is any damage to premises or to land that tends to be permanent and lasting loss to the person entitled to the inheritance. Waste is usually classified into two (a) voluntary waste consisting of a positive act of destruction or damage to the inheritance e.g. pulling down or altering buildings opening mines, changing the course of husbandry or cutting timber (b)  Permissive  waste consists mainly in allowing the building to decay. The tenant is generally liable for waste he is under an implied covenant to deliver up the premises in a tenantable state of repair, including keeping all fences on the land in a state of repair.

TENANT’S IMPLIED COVENANT

The tenant impliedly has the right to

• The taking of estovers
• the gathering of growing crops
• removal at the end of the tenancy of certain fixtures (tenant’s fixtures)

They include trade fixtures, ornamental and domestic fixtures and agricultural fixtures.

In Ige & ors v La Compagnie General the court held that a tenant is entitled in the absence of any agreement to the contrary to remove his trade appliances which do not amount to “fixture” on the determination of his lease. In the instant case, the shelves counters and electric light fittings were held to form removable fixtures which were removable by the tenants.

ENFORCEMENT OF COVENANTS

Apart from forfeiture, the usual remedy for breach of a covenant to repair is damages, injunction and specific performance where the covenant is breached by a tenant. This is because damages are considered an adequate remedy for the landlord. Where  the landlord breached the covenant, damages or specific performance of the covenant or deduction of money expended for repairs could be ordered.

• Where the breach relates to the covenant to pay rent, the covenant is considered separately from other covenants. The covenant is enforced by:
• the landlord may when the rent is in arrears exercise his right of distress, it is usually levied within thirty days of the date when the rent falls due, on the tenant’s goods wherever they may be located. It confers the landlord with a right of re – entry. The law frowns on self help and mandates a bailiff to be given a warrant by the landlord who must have obtained an order from a court is the one authorized to destrain the tenant’s goods. The impounded goods are liable to be sold if the tenant does not meet his obligations to the landlord

In Da Rocha v Shell Co (1938)14 N.L.R.1. The court held that  before the landlord can sue his tenant on grounds of forfeiture for non payment of rent, there must have been a formal demand for rent from the tenant by the landlord.

• where other covenants are breached by the tenant, the landlord’s remedy lies. In action for damages for the breach or an injunction to restrains a threatened breach

RECOVERY OF PREMISES.

The mode of recovery of a premises is dependent on the nature of the user. Where a premises is utilized as a guest house, or hotel, the usage is not considered to be for residential purpose. The occupants of such premises are not referred to as “tenants” but as “lodgers”

• where premises are utilized for residential purposes, its use, occupation and recovery of possession is regulated by the Rent Control and Recovery of Residential premises law. Otherwise referred to as “Rent Control Law” the proviso to section 16 of the Rent Control Law (Lagos) provides that where a tenant is monthly tenant and his rents are in arrears for three months, the tenancy should be considered determined and on application to the court by the landlord, an order for payment of arrears of rent delivery up of possession of the premises occupied would be made.

To be applicable, the premises must be utilized for residential purposes and not as an office, shop warehouse or vacant land. S. 1

(1) of the Lagos Rent Control Law provides that that the law is applicable to residential accommodation only

MODE OF TERMINATION OF TENANCY

The most popular mode of termination of tenancy is by notice to quit. A notice to quit issued by a landlord on a tenant must be in writing.

ESSENTIALS OF A VALID NOTICE

A valid notice must contain:

1. The name of landlord or his authorized agent. The agent must stipulate that he is acting as the agent of the landlord

In Bashua v Odunsi (1940) 15 NLR 107 a notice to quit was declared invalid when it was evident that the landlord’s son issued it without reference to the landlord.

5. The name of the tenant
6. The nature of the tenancy (whether monthly, quarterly, half yearly or tenancy at will) must be stipulated
7. A brief description of the premises must be provided e.g room, flat or house
8. The effective date of the notice to quit and the time for delivery up of possession must be stated
9. A notice to quit should be clear and unequivocal and must not leave the  tenant  in  doubt as  to the true intention of the landlord

• the motive for the issuance of a notice to quit by a landlord is irrelevant even when it is ill motivated, the landlord is still entitled to recover the premises

LENGTH OF NOTICE REQUIRED

Section 8 (1) of the residential premises law provides that for a tenancy at will or a weekly tenancy, a week’s notice is required. In the case of a monthly tenant, a month’s notice is required and half  a year’s notice for a yearly tenancy.

EFFECT OF INVALID NOTICE

A landlord’s action to recover possession on an invalid notice to quit is a condition precedent to recovering of possession.

In Eleja v Bangudu (1994) 3 NWLR (PT 334) S26 the court of  appeal held that where a notice to quit is defective the proper order to make is to strike out the landlord’s claim.

MESNE PROFITS.

Mesne profit is the compensation paid to a landlord by a tenant for use and occupation of his premises. This is because at the end of  the tenancy’s a tenant is obliged to yield up possession. If he fails, he is considered a trespasser, his continued possession being a wrongful act. As a trespasser, he is liable to pay damages but instead of the expression “damages” the term mesne profit is utilized.

 

As stated in section 40 (1) of the Rent Control and Recovery of Residential Premises Law 1976 (Lagos) Provides

Mesne profit means the rents and profits which a tenant who holds over or a trespasser has or might have received during his occupation of the premises and which he is liable to pay as compensation to the person entitled to possession

DETERMINATION BY SURRENDER

In addition to notice of termination a tenancy may be determined  by surrender. Surrender is a yielding up of an estate to the owner of the reversionary interest in the property. Surrender may be done expressly by deed or by operation of law. Abandonment arises where a tenant quits the demised premises without the knowledge or notification of the landlord. Mere non user is not sufficient to prove abandonment. The circumstances must exist from which  it can be inferred

EFFECT OF SURRENDER

A surrender of a lease operates only to release the tenant from obligation taking effect after the date of the surrender leaving the tenant liable for past breaches. The rent which has accrued or become due at the date of surrender is recoverable. On the other hand, once the landlord accepts the surrender, the tenant is discharged from future obligations.

In Walls v Atcheson (1826) 130 ER 591 A tenant for a term of one year quit the premises in the middle of the term and the landlord let them to another tenant. The landlord subsequently sued the tenant for compensation for use and occupation of the unexpired residue of the year. It was held that by putting another tenant there, the landlord has accepted the surrender and the tenant could not be liable for any obligation that arose after the surrender

 CONCLUSION

Under the Recovery of Premises Law, a periodic tenant is obligate to notify his landlord of his intention to terminate the tenancy and  yield up possession. Where he fails to do so, he remains liable to pay the rent accruing to the premises in the same manner as if he was actually in possession.

 SUMMARY

• Rights and obligation accruing to the Landlord and Tenant in a tenancy agreement  is   dependent   on   the   tenor   of   the

agreement.

• Tenancy agreements contain express covenants agreed on between the parties and covenants that are
• Apart from forfeiture, damages, injunction and specific performance are methods of enforcing compliance with covenants in a tenancy contract .
• The usual method of recovery of premise is by the issuance of a notice to
• A valid notice must contain the names of the tenant, description of the premises, the nature of the tenancy and the date for delivery up of
• The motive for the issuance of a notice to quit is
• On the expiration of a notice to quit, the tenant becomes a trespasser and he is liable to pay mesne
• A tenancy is also determinable by the tenant surrending the premises.
• The effects of a valid surrender is that the tenant is released from his obligations to the
• Where a tenant fails to notify the landlord of the surrender of the premises, he is deemed to still be in possession of  the  property  and liable to pay rent for the period. It is irrelevant that  he is no    longer in physical possession. He remains constructively in
• For the Rent Control and Recovery of Residential premises to be operative between landlord and tenant, the premises must be utilized for residential purposes only.

 TUTOR MARKED ASSIGNMENT

1.(a) what are the essential of a valid notice to quit

• As agent to Dr. Sunny Ogon issue a Notice to Quit to Mark Osuji, a monthly  tenant  residing  at  2,  Ogbewe  Avenue, Iganmu, Lagoswhose rent has been outstanding  for  3    The Landlord     Sunny Ogon intends to take delivery of possession of the premises on December 31, 2012

2. In a tenancy arrangement, both the landlord and the  tenant  are bound by express and implied covenants. Do you agree?

SUGGESTED FURTHER READING /REFERENCES

Emeka Chianu Law of Landlord and Tenant (Abuja: Panaf Press,     2010)

STATUTE:

Rent Control and Recovery of Residential Premises Law (Lagos) 1976.