A right of occupancy can be said to in principle less than freehold interest; the holder cannot create anything more than a sublease in favor of a third party. Creation of a lease by the holder of a statutory right of occupancy after March 28, 1978 for example merely creates a sublease since in fact; the holder has an interest less than freehold.
Also, No sublease may be validly created without the consent of the Governor in respect of a statutory right of occupancy of the Local government in respect of customary right of occupancy. See Sections 21 and 22 LUA 1978. Any sublease created without requisite consent is void see section 26 LUA 1978.
TYPES OF TENANCY
i. TENANCY FOR A FIXED TERM:A tenancy for a fixed term or term certain is that with definite beginning and end so that when the time lapsed, the relationship of landlord and tenant automatically terminates and the landlord if he so wish may take possession through the due process of law after servingon the tenant Notice of Owner intention to possession (i.e. seven days’ notice).
ii. TENANCY AT WILL: This arises whenever a tenant hold over with the consent of the owner or landlord after the expiration of the term granted. The law will also infer that the tenancy stands determined if either party dies or the landlord parts with his reversion and the tenant receives notice thereof, or, if the tenant assigns his interest to another and the landlord has notice. Where the tenancy is determined in any of these ways, the tenant is entitled to a reasonable time to enter and reap his crops or remove his property.
During the period of the tenancy the landlord is ordinarily entitles to compensation for the use and occupation of the land unless the parties otherwise agreed, but where rent is agreed upon, it may be distrained for in the usual way. See African Petroleum Ltd v. Owoduns (1991)8 NWLR (pt. 210) p.139
A tenant at will may not be liable for permissive wastes but where he commits voluntary wastes the tenancy determines and he will be liable for trespass.
iii. TENANCY AT SUFFERANCE: A tenant at sufferance is one where initial entry on the demised property is lawful and holds over after the expiration of the lease wrongfully such tenant is different from a tenant at will who holds over with the consent of the landlord. The position of such a tenant at common law was precarious. He may be evicted summarily and had no right to re-enter the land to reap his crops. At common law, a tenant at sufferance has no liability to pay rent for the period of holding over but may pay mense profit.
Mense profit is the sum due to alandlord from the time his tenant ceases to hold the premises as tenant to the time he gives up possession and it is generally calculated on the yearly value of the premises and so a landlord is not bound to use the rent payable during the tenancy as an index of the rate of mense profit, see Osarawu v. Ezeiruka (1978)6 S.ci.135.
A tenant at sufferance is an adverse possessor and time runs in his favor under the limitation lawand after twelve years, the right of the landlord to recover possession maybe barred.
iv. STATUTORY TENANCY: A statutory tenant is an otherwise tenant at sufferance but whose tenancy is protected by a rent control and recovery of premises law. Thus a statutory tenant is an occupier who, when his contractual tenancy expires holds over, continues in possession by virtue of special statutory provision and holds the land of another contrary to the will of the other person who strongly deserves to turn him out, see Oduye v. Nigerian Airways (1987)2 NWLR (pt. 55) pg. 126, such a tenant is thus a protected tenant which can only be evicted after the serving on him of a statutory notice, and if necessary, a writ of possession, see Etiochim Nigerian Ltd. v. Fabadiwe (1986) 1NWLR (pt. 14) pg. 47; Sule v. Nigerian Cotton Board (1985)2 NWLR pt. 5 pg. 17.
v. TENANCY BY ESTOPPEL: Tenancy by estoppel arises where a person grants a lease of property in respect of which he has no interest. The lessor and lessee are precluded from denying the existence of landlord and tenant relationship, see Agbomeji v. Olivant 16 NLR pg.92.
A tenancy by estoppel has all the attributes of a true tenancy and both parties are bound by covenants in such lease. It becomes a true tenancy where the lessor subsequently acquires the title to the property.
RIGHTS AND LIABILITIES OF LANDLORD AND TENANT
The rights and liabilities of the parties to a lease or a tenant are fixed by the covenants in the lease some of these may be implied by law.
In the absence of express stipulations by the parties, the law implies the following obligation on the part of the landlord;
a. QUIET ENJOYMENT: Where the lease is silent, the law implies in it that the lessee shall enjoy quiet possession. The lessee shall be entitled to recover damages if his enjoyment of the demised premises is substantially disturbed by the acts either of the lessor or somebody claiming under the lessor, see Jones v. Lavington (1903) 1 KB pg. 252. Where with a view of getting rid of the tenant, the landlord remove the doors and windows of the demised premises, the court held that there was a breach of the covenant in question, see Lavender v. Betts (1942) All EP pg. 72.
b. FIT FOR HABITATION: Upon letting of the house, there is an implied warranty in the nature of a condition that the premises shall reasonably be fit for habitation at the date fixed for the commencement of the tenancy, see Bottomly v. Bannister (1932) KB pg. 458. The premises must not only be fit for habitation at the date of commencement of the lease but must also be fit for habitation for a reasonable time thereafter.
c. NON-DEROGATION FROM GRANT: A landlord is under an obligation not to derogate from his grant. This means that he must not do anything with the demised property that renders the purpose for which the grant was made to the tenant impossible. The landlord must not frustrate the use of the land for the purpose for which it was let, see Browne v. Flower (1911) 1 ch. Pg. 219.
TENANT implied covenant;
a. COVENANT TO PAY RENT: The tenant has the duty to pay rent. The rent must be certain and the date of payment must be precise covenant to pay rent may be provide as follows: “The rent reserved shall be payable in advance and if not paid on the second day of the expiration of the current rent it shall be lawful for the landlord to re-enter upon the demised premises and determine same.”
b. COVENANT TO REPAIR: The tenant has the duty to put the demised premises in a good and tenantable repair or good condition sometimes the repairs is limited to inferior while the lessor takes care of the exterior
c. COVENANT NOT TO ASSIGN: A lessee has the freedom to transfer his estate to a third party. This right may be qualified by a clause in the covenant that the tenant“shall not assign or underlet”. The covenant may be absolute or conditional. An absolute covenant is one which imposes an unconditional prohibition on transfer upon the tenant on the other hand, a qualified covenant is one which subjects the right of tenant to transfer to the consent of the lessor. This may be further qualified to the effect that the lessor’s consent shall not be unreasonably withheld, see InternationalDrilling Fluids Ltd. v. Louisville Investment (Lux bridge) Ltd. (1986) L.R. Chan. Div. 513.
d. COVENANT TO DELIVER UP POSSESSION:Covenant by lessee to yield and deliver up the demised premises upon the expiration of the term he can contain appears an assurance on the part of the lessee that the lessor shall have peaceable possession of the demised premises at the expiration of the term. Possession is delivered when the tenant returns the keys of the premises and the landlord accept then the landlord accepts them with the intention of changing possession.
A tenant cannot be regarded as having delivered if he vacates in the premises but retain the keys thereby preventing the landlord from entering into possession, see Asoropa v. Orelaja (1976) 5 CCHCJ pg. 1405 High Court Lagos. The effect of the breach of the covenant at common law is the tenant’s liability for damages. This will include the rentof the premises during which time the landlord is kept out of possession and the cost of an action brought against him to recover possession.
REMEDIES FOR BREACH OF COVENANT
1. COVENANT TO PAY RENT
a. DISTRESS: At common law, the landlord seize and sell goods found on the demised premises whether it belongs to the tenant or a stranger in payment of the arrears of rent without recourse to court. But under the recovery of premise law, the remedy is only available to the landlord executing a court judgment for arrears of rents in accordance with the sheriff and civil process law and the court on being satisfied that a tenant has defaulted in paying the standard rent fixed. The court may order that the tenant property be distrained, see Section 7(1) of the Rent Control and Recovery of Presidential Premise Edict No 6, 1977, Lagos state; Sheriff and Civil Process Act Cap 407 LFN 1990.
b. ACTION FOR ARREARS OF RENTS: A landlord may recover arrears of rents by action. However, this action is not available where the landlord has levied a distress, unless the proceeds from the distrained good is insufficient to satisfy the arrears, see Archbold v. Scully (1861) 9 H.L.C. 360
c. ACTION FOR FORFEITURE: The landlord may re-enter the premises upon a breach of the covenant to pay rent by the tenant. But since the law generally leans against forfeiture, no acting for forfeiture will lie in the absence of a forfeiture clause in a lease agreement.
DETERMINATION OF LEASES
A lease or tenancy may be determined by;
I. SURRENDER: A lessee or tenant may yield up the remainder of his interest in the land to his lessor or landlord. If a tenant surrender to lease to his immediate landlord who accepts the surrender, the lease merges in the landlord’s reversion and is extinguished. The surrender must be to the immediate landlord; a transfer of the lease to a superior landlord does not amount to surrender but operates merely as an assignment of the lease. If “A” leases to “B” for 99years and “B” subleases to “C” for 2 years, C’s lease will be extinguished by surrender. If he transfer it to B, but not if he transfers it to A.
II. MERGER: The term of years (i.e. the lease) and the reversion are concurrent interests that cannot be held by one and the same person at the same time. If the lessor conveys in fee simple, the term or lease is at common law alienated. If the lessor transfers his freehold to the lessee, the lease is determined immediately at common law
III. EFFLUXION OF TIME: Where the tenancy is for a fixed term, it stands determined automatically at the expiration of the term and no formal steps need be taken to put it to an end.
IV. NOTICE TO QUIT: At common law, a notice to Quit is required to bring an end to all forms of periodic tenancy and tenancy for a fixed term if a stipulation to that effect appears in the lease agreement, see Obadina v. Agro Service Corporation (1985) HCNLR p. 215. In the case of a yearly tenancy, it is usual to give half a year’s Notice (Six months) while Notice of termination in the case of other periodic tenancies such as weekly, monthly, quarterly and half yearly tenancy is the full period corresponding to the type of periodic tenancy in question.
V. FRUSTRATION: The question whether a lease can be frustrated was answered in the affirmative by the Supreme Court in Araka v. Mornier Construction Co Nig. Ltd (1978) 98 S.C. pg. 98.
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