Last week, we dealt extensively with the rights and obligations of the tenants under the Landlord and Tenant law. It may appear that the law offers more protection to the tenant to the detriment of the landlord. On the contrary, the law offers both parties equal protection by making all the rights and responsibilities of both parties vice versa. This simply means that the rights of the tenant are the obligations of the landlord, while the obligations of the tenants are the rights of the landlord. Thus, the rights and obligations of the landlord will be discussed in this edition.
THE RIGHT TO RECEIVE RENT:
As a landlord, the most important feature of any tenancy created by you is the inalienable right to recoup the bounty of your investment which is by the punctual payment of the rent by your tenant. The tenant must pay the agreed rent in exchange for the occupation and exclusive use of the property as at when due. The arrears in excess of three consecutive months or non payment of rent is a serious breach of the tenancy agreement which entitles you to terminate the tenancy and proceed to recover the leased premises immediately.
THE RIGHT TO ENTER THE LEASED PROPERTY:
It is an established fact that a tenant is entitled to the exclusive use and privacy of the leased property to the exclusion of all others inclusive of the landlord. However, the landlord also reserves the right to enter into the leased property albeit with the permission of the tenant. This is to ensure adherence to the tenancy agreement, maintenance of the property and that it not put to illegal use. Hence, a landlord must seek the permission of the tenant and also give adequate notice before the entry. In carrying out this task, the landlord must ensure that the entry is not at odd hours and it is not too frequent which may be irritating to the tenant. Conversely, the tenant must not unreasonably deny the landlord the permission insofar the entry is hinged on maintenance or inspection of the property. Provisions for this must be expressly stated in the tenancy agreement at the inception of the tenancy.
A landlord must not under the guise of maintenance illegally enter the leased property for recovery of premises by resorting to self help. The use of self help is expressly made criminal under the Tenancy law and the landlord may face both criminal and civil lawsuits by the tenants.
THE RIGHT TO ISSUE EVICTION NOTICE:
A tenancy can be terminated at the instance of landlord provided the legal procedure is duly adhered to. The law requires you to provide reasons for the eviction and also give the tenant adequate notice to enable him get an alternative accommodation. Failure to comply with the legal procedure will render the eviction notice null and void and of no effect. What is adequate is dependent on the length of time expressly provided for in the agreement. Any agreement reached by both parties will not be varied but enforced by the court because both parties are free to negotiate the rules guiding their relationship.
Conversely, if the tenancy agreement is silent on the issue of the notice required, the statutory notice must be applied. The statutory provisions states that a yearly tenant is entitled to a six months notice while a half yearly tenant will be entitled to a three months notice while a monthly tenant is entitled to a months’ notice. After the expiration of the eviction notice, if the tenant fails to deliver possession, the landlord is statutorily mandated to also issue a seven days notice which is primarily to inform the tenant of the landlord’s intention to apply to the court for recovery of the premises. It is imperative to state that the eviction notice must be expired before the issuance of the seven days owner’s intention to recover premises.
RIGHT NOT TO ISSUE AN EVICTION NOTICE:
This appears contradictory to the above paragraph but it is not. First among the instances where the landlord can dispense with the issuance of the eviction notice is if both parties waived it in the tenancy agreement. The court will not interfere and will enforce it because the parties are free to regulate the terms and conditions guiding their relationship provided there is no evidence of fraud.
Another instance whereas the landlord can dispense with the issuance of eviction notice is if the tenant breaches a covenant in the tenancy agreement. Common breaches of covenants in tenancy agreements are usually arrears of rent for more than three successive months and illegal use of a property. If a tenant converts a residential property to a commercial or industrial use, it may be a fundamental breach of the tenancy agreement and this will entitle the landlord to take steps to recover the premises immediately without the service of an eviction notice.
Also, a fixed tenancy does not need to be terminated by the landlord by the service of an eviction notice once the duration had expired because the tenancy had already been terminated by effluxion of time. For instance, if a tenancy agreement states that the tenancy is for a fixed period of one year, if at the expiration of that one year the tenant fails to deliver up possession, the landlord can issue a seven day notice without the service of an eviction notice. This is on the premise that the tenancy had already been terminated by operation of law.
RIGHT TO THE MAINTENANCE OF THE PROPERTY
It is the right of the landlord to ensure that his property is in a tenantable condition. This is with the exception of the usual wear and tear that accompanies the use of a property. The tenant must ensure that property is clean and habitable. The tenant must also report any structural damage to the landlord immediately the damage occurs as to forestall the property falling into disrepair.
Right to review rent: It is an alienable right of the landlord to review the rent on the property periodically. All that is required of the landlord is that the rent review clause in the tenancy agreement must be complied with. Thus, it is advisable that in exercising this right, the landlord should ensure that the upward review must not be unreasonable or arbitrary as it may be subject to litigation by the tenant. A rent review must be for a fresh tenancy and not for a subsisting tenancy.
Nevertheless of these rights stated above, the landlords also have corresponding obligations towards the tenants to ensure a balance in the relationship. The obligations area as enumerated below;
THE DUTY TO ISSUE RECEIPT OF PAYMENT
it is very crucial that as a landlord, you must issue receipt for payment of rent immediately. It is statutory duty which can be discretionary. Further, you receive service charges on a property, you must to issue issue a separate receipt for the payments received for service charges asides the rent receipt. A written account must also be rendered at least every six (6) months of how monies paid by tenants were disbursed. Failure to provide a receipt is criminal and punishable by a fine of One hundred thousand naira.
THE RIGHT TO A PROPER NOTICE
While it is your right to recover your premises from a tenant, it is imperative that the legal procedure must be followed strictly by issuing an adequate notice of termination. What is an adequate notice is however subjective to what was agreed upon by both parties in the tenancy agreement at the inception of the tenancy. If the agreement is silent on the length of notice required, you must apply the statutory notice. Any notice which falls short of the agreed length of notice or the statutory notice will be regarded as invalid and of no effect. You cannot give a shorter notice than the ones stated above.
If upon the expiration of the quit notice, you fail to give up possession of the premises, you are required to further issue a statutory seven day notice to the tenant before the matter is filed in court. This notice is the most crucial notice because it cannot be amended by either of the parties. It mandatory that the eviction must have expired before the seven days notice is served on the tenant. The legal proceeding is predicated on this very important notice.
DUTY NOT TO RECEIVE EXCESSIVE RENT ADVANCE PAYMENT
Prior to the advent of the Lagos Tenancy Law in 2011, there were no restrictions regarding the advance of rent to be demanded from both existing and prospective tenants. It was totally at the discretion of the landlords. However, the Tenancy Law of Lagos 2011 has criminalised the payment of an advance rent in excess of one year. So, it is strongly advised that you desist from the temptation of demanding or receiving a rent payment in excess of a year because both the giver and receiver of the excessive rent are both liable and guilty of an offence. Any landlord who demands in excess of one year rent is criminally liable to three months imprisonment or a fine of One Hundred Thousand naira.
DUTY TO COMPENSATION
If you lease out a property to a tenant and it is apparent that more improvement needs to done, you can consent to the tenant carrying out the improvements but with the agreement to compensate the tenant at the expiration of your tenancy. However, this right is only enforceable against you if you authorised the tenant to carry out the improvements. If the tenant carries out such improvements without your approval will not be entitled to any compensation.
DUTY NOT TO ILLEGALLY EVICT
The law out rightly criminalises the act of self help resorted to by any landlord to intimidate, oppress, subdue and unlawfully eject their tenant. Section 44 of the tenancy Law of Lagos state states that any person who demolishes, alters or modifies a building, or molests with a view to eject a tenant without the approval of the court is guilty of an offence and is liable to six month imprisonment or an option of fine of two hundred thousand naira.
DUTY TO ADHERE TO THE TENANCY AGREEMENT:
The tenancy agreement is a very vital document to the existence of the tenancy. Both parties are under a duty to obey all the terms contained in the agreement as they legally enforceable. It is absolutely important for you as the landlord to strictly adhere to your side of the agreement to avoid unnecessary conflicts and ensure a smooth relationship with your tenant.
Next week, we shall be starting the series on the validity of marriages under the Nigerian law and it promises to be interesting.
Written by,Olamide Onifade, Senior partner, Olamide Onifade & Associates, 149, Ogudu road, Ogudu, Lagos. Email; email@example.com, Telephone: 0909 333 5636.