Housing tenancy conflict (1)

Sometimes late last December, a friend called to inform me that his wife’s shop had been locked by her Landlord without any prior notice. I asked if she was in default in Rent. He said the rent fell due a week earlier and that he had called to inform the landlord that the rent would come in as soon as his salary was paid in the last week of same December. He wanted me to promptly institute an action against the errant landlord for such an act. As provocative as the landlord’s action was, it was proper to do a proper investigation to arrive at a reasonable conclusion. The grounds for legal action must be clear and unambiguous before commencement. Otherwise, such will be an exercise in futility and a dissipation of judicial and judicious resources. I then requested to see the Tenancy Agreement which he had earlier informed me was available. A few days after this discussion on phone, he came to my office with this Agreement. What shocked me most about the document was the ambiguity of its contents. As if this was not bad enough, I also noticed that the Rights of this Tenant were totally extricated in this Agreement. A section of this document actually empowered the Landlord to re-enter the demised apartment without any notice. This to me was a total abuse of Due process. As important as a Tenancy Agreement is; it must not be an instrument to alienate the rights of parties to it.

It’s a major predicament to landlords and Property agents on how to best rid themselves of very tenants without erring in law. it’s apparent that some tenants unscrupulously seek to exploit the lacuna in the applicable laws just so they can occupy properties for years without the burden of rent obligation. This often leaves the receiving landlords or property managers bitter, helpless and sometimes frustrated about such situations. This unsavory situation has also left Landlords and Property managers resulting to self help. They end up imposing such shoddily prepared lopsided Agreement on tenants who on their own execute such Tenancy Agreements without getting them perused by legal experts. When the chips are down; they run from pillars to post to seek for legal remedies when in the first instance, they didn’t act judiciously. This was the case of my friend and his wife. It was also discovered that in the process that the Landlord cleverly avoided issuing receipts for payments made. Issuance of Receipts is a performance Obligation to the Landlord and not an option. It therefore becomes a violation if such obligation if neglected. This is aptly addressed

In the Lagos Tenancy Law of 2011,  5.(1) As from the commencement of this Law, all landlords shall upon payment of rent by the tenants, be obliged to issue a rent payment receipt to their tenants in respect of such payments(2) The receipt shall state the –(a)date on which rent was received; (b) Names and addresses of the landlord and the tenant; (c) description and location of premises in respect of which the rent is paid;(d) Amount of rent paid; and(e) Period to which the payment relates.(3) Any landlord who fails to issue a rent payment receipt to his tenant as prescribed under this Section shall be liable on conviction to a fine of One Hundred Thousand Naira (N100,000. 00)

From the foregoing, we can see that it’s not a wish, a choice or a practice of convenience for the tenant to have a receipt from his landlord. It is therefore a total demonstration of sheer ignorance for a tenant to throw his arms up in the air and lament helplessly that his landlord refused to avail him receipts of payments. Some landlords do this to form a basis for eviction or subjugate such tenants’ rights.

When I eventually got across to the landlord (a lady), she called my bluff and bluntly told me that her Notice to Quit was already contained in the Tenancy Agreement which they both signed. I tried to educate her on this. I told her that The Lagos State Tenancy Law 2011 provides that parties can provide for how a notice to quit can be given in the tenancy agreement, however, when there is no such provision,

Section 13 of the law provides that:-

Where there is no stipulation as to the notice by either party to determine the tenancy, the following shall apply –

• a week’s notice for a tenant at will

• one (1) month’s notice for a monthly tenant

• three (3) month’s notice for a quarterly tenant

• six (6) month’s notice for a yearly tenant.

It’s important to note that when the tenancy is for a fixed period (e.g. one year) and such period has expired but the tenant refuses to give up possession, if the landlord intends to recover possession, he shall serve a seven (7) days written notice of his intention to apply to recover possession. Such notice will be classified as properly served when handed to the tenant in person; to an adult residing on the premises; by courier to the address or posting same on a very visible part of the premises in question.

Upon expiration of the 7 day ultimatum, if the tenant still refuses to give up possession, the landlord may file a claim for recovery of possession against the tenant in the magistrate court or high court where the premises is located.

A court can also order possession if the tenant is in arrears of rent; has breached any covenant in the agreement; where the premises is required for personal use by the landlord and where the premises requires substantial repair. A court shall also have power to make an order for possession upon proof of facts that; the premises is used for immoral or illegal purposes; has been abandoned; is unsafe and constitutes a danger to the public or the tenant simply constitutes a nuisance.

It is therefore a clear breach of the law to have an Agreement that outlaws the rights of a party to Rent. Such Agreement can not stand the test of legal evaluation when placed against the Tenancy Act. The position of any Agreement or any Legal document must be in conformity with the laws of the land. Clearly put; an Agreement is an extract or a collection of extracts of various pieces of applicable laws. Where an Agreement, Tenancy or whichever is in contravention of the law, such Agreement, to it’s extend of contradiction remains null and void and of no effect. It is in the interest of parties to Agreements to get legal interpretation of such Agreements before causing their signatures to append such Agreement. Where such Agreements have been signed, sealed and delivered, it takes another legal bottle neck to untangle the party whose interest is abridged by the provisions of such Agreement. It is penny-wise, pound-foolish to first of all execute such Agreements without legal advice, then turn around to start sourcing for the services of lawyers to help undo the negative impact of such Agreement. Needless to say, such is a far more expensive Endeavour than doing the needful ab-initio.

A reader also wanted me to shed light on the practice of Landlords presenting Tenancy Agreements to tenants to execute several months after they have moved into the apartment rented. The question is; at what point do you pay your Agreement fee, which is supposed to be expended by the Landlord in preparing such Agreement? The short response to this is; signing an Agreement after Performance is akin to putting the Cart before the Horse. The Agreement is supposed to be the ground-norm upon which such Tenancy is based. To start executing that after payments are made and delivery taken is to say the least, an abuse of process. An intending tenant ought to be abreast with the content of a Tenancy Agreement before payment. He has a choice to accept or decline such Agreement if he finds it arbitrary. If he has paid and packed into an apartment, where then does his option lie? Such Agreement should be declined or at best, reserved for the next tenancy year.

The same reader lamented that his landlord actually gave him a Notice to quit even while his rent was yet running. The truth is; it is the prerogative of the Landlord to decide when he should issue a Quit Notice once such is not captured in a Tenancy Agreement. However, such Notice should be sure to comply with legal due process. The process as enunciated by law has already been discussed in the early part of this article. In subsequent editions, we shall thoroughly take a further look at the Rights & Obligations of the Tenant vis-à-vis the Landlord. Suffice to say that Tenancy is never that of master-servant relationship!

Akhigbe Dominic