A legal definition has it that tenancy is the transfer of interest in land for a fixed period less than three years. In other words, any duration more than three years is not a tenancy but a lease. (Do not trouble yourself trying to understand in depth what constitutes ‘land’, or the difference between a tenancy and a lease, since they are really not beneficial at the moment, except for law students.)
Before making payment and packing into an apartment, prospective tenants must ensure they enter into a Tenancy Agreement with their landlords. It is however advised that such agreements should be in writing and documented for evidential purposes in court. It is worthy to note that a tenancy agreement is one that encapsulates the rights and covenants of the tenant and the landlord regarding occupation of a premises. Also note that without an agreement, parties cannot be bound and therefore not legally answerable for any injury done to the other party or to the premises. Having briefly learnt the introductory aspect of tenancy, it is time to learn about the juicy deal!
– What should you do or not do to obtain or avoid your landlords favour or fury?
– What would your landlord do and booooom!, he falls into your legal trap?
You are eager to learn right? I know you are. Fasten your seatbelts then.
IMPORTANT COVENANTS AND RIGHTS OF A TENANT.
The term ‘covenant’ here simply means ‘agreement’. Below are covenants that can be found in a tenancy agreement for the tenant to perform:
1. Covenant to pay rent: This covenant ensures that the Tenant pays the rent at the time and in the manner agreed upon. If an agreement fails to provide for this covenant, any breach of payment arising therefrom cannot be enforced in court. However, tenants are morally obliged to pay rents even if this covenant is omitted in the agreement.
2. Covenant on Use: This limits the possessory rights and privileges of the tenant as to what they can do with or on the property. For instance if the landlord desires his property to be used for residential purposes only, a tenant who uses such as a brothel or for poultry farming is in breach of this covenant and thus liable.
3. Covenant on assignment and subletting: Assignment in this sense has nothing to do with the ones given in classrooms. It simply means ‘transfer’. This covenant forbids a tenant to transfer or sub-let his possessory rights in the property to another party without the landlord’s consent and approval.
4. There is also covenant to repair and prevent wilful damage.
5. Covenant to peacefully surrender the tenement to the landlord in good condition upon termination of the tenancy relationship. Tenement simply means the apartment or building.
Some covenants however, may not be expressly provided for in the Tenancy Agreement, but are implied and enforced into the agreement by law. They are referred to as Implied Covenants. They include:
6. Covenant not to commit waste: Simply don’t leave your water taps on when not in use. Same applies to the electric bulbs, and other related issues.
7. Covenants to pay rates and taxes: This include waste disposal bills, electricity bills, sanitation fees, security levies etc.
8. Covenant of the tenant to allow the landlord enter into and view the conditions of the property.
Another category of covenants are those referred to as Usual Covenants. This could be covenants the parties initially agreed on during the negotiation stage but failed to provide for them in the Tenancy Agreement. The most significant is landlord’s covenant to allow the tenant enjoy quiet possession. In other words, the landlord should desist from unnecessarily disturbing the tenant.
If you understand to this point, then you are track! If not, kindly skim through from the beginning again. I promise you will connect. Let’s move on!
It is worth mentioning at this point that the landlord can add as many covenants as he wishes in the agreement. For instance, covenant against consumption of narcotics and alcohol within the premises, covenant not to make use of certain electrical appliances, covenant against playing loud music and disturbing the neighbourhood etc.
Therefore, it is not an error to conclude that a tenant has an unrestricted right to do any lawful or unlawful act which does not fall under express covenants, cannot be implied by law, and not a usual covenant. For clarification purposes, any unlawful act (for instance rape or murder) committed by the tenant in the apartment cannot be a ground for termination of a tenancy agreement unless it is provided for as a covenant in the agreement.
Let’s briefly ride through the landlord’s covenant and rights in a tenancy agreement. They include:
1. Covenant not to disturb the tenant’s enjoyment of the tenement as long as the tenant observes all the covenants on his part.
2. Covenant to refund unexpired rent: Sometimes any of the parties may before the agreed date of expiration of the tenancy desire to terminate the tenancy relationship. Where it is the landlord who desires to so do, he shall refund the unexpired rent to the tenant, notify the tenant in writing at least a month before termination. The landlord also must have performed all his obligations and must not be in breach of any of the covenants on his part. Equally, where it is a tenant whose desire it is to terminate the tenancy relationship, he would forfeit the unexpired rent.
The landlord has the following rights:
3. To enter the premises and view the condition of the property.
4. To seek for redress in court should the tenant breach any of the covenants.
Take a deep breathe! Exhale slowly! If you have read to this point, you are simply awesome. However, we are about to embark on another thrilling academic voyage. I hope you enjoyed learning about your rights and privileges as a tenant, hidden under the the shade of covenants in a Tenancy Agreement? I’m sure you did. Congratulation!! Now lets drive through the second segment.
THE LEGAL TRAP: Limitations to the powers of ejection.
Believe me readers, this topic is as interesting as it sounds. To start, a landlord who desires to eject a tenant and recover his premises MUST adhere strictly to the provisions of the law. Any slightest deviation from the provisions of the law will hamper such attempt to recover possession, no matter how monstrous and intolerable such tenant may be. Wow right? I guess you are eager to know the stand of the law. Take a sip from your glass of water first…… Good!
Interestingly, the law provided four (4) steps which a landlord must follow so as to acquire full legal right to eject a tenant. These steps are:
1.Obtain a letter of authority from the landlord (for agents and solicitors of the landlord).
2. Issue a notice to quit.
3. Issue notice of intention to recover possession.
4. Commence an action in court.
Let’s us now discuss them individually.
1. Letter of authority: All notices must be issued by the landlord himself or by an agent or solicitor. When issued by the landlord, no letter of authority is required. However, when he issues through an agent or solicitor, such person must be authorized in writing and not orally. Where the letter of authority is not given to an agent or solicitor, all steps taken by them to recover the premises amounts to nothing. What a legal waste of time!
2. Notice to quit: A landlord who desires to recover possession of his premises is under an obligation to issue a notice to quit except the tenancy has expired either by effluxion of time or by operation of law (don’t mind the jargons. Not valuable to you). The notice will specify the period within which the tenant must quit and vacate the premises. The length of notice depends on the agreement between the parties. However, note that there are circumstances where a notice to quit will not be required. (There are lots of technicalities under this heading which I believe is only of benefit to legal practitioners and won’t be of any value to you. Thank me for leaving them out…….. You’re welcome!)
3. Notice of owner’s intention to recover possession: This is known as ‘7 days notice’, usually issued after the quit notice has expired. Note that upon expiration of the quit notice, the tenancy relationship ceases to exist. The status of the parties changes from landlord/tenant to owner/occupier. Upon expiration of the quit notice, if the tenant (now occupier) fails to vacate the premises, the landlord (now owner) or his agent will issue such person with a 7 days notice of owner’s intention to recover possession. These two notices must be served on the tenant/occupier respectively. Failure to do so would render any legal action commenced in court invalid.
4. Action in court: If after all the steps discussed above have been complied with and the occupier has still not vacated the premises, it behoves on the landlord to commence an action in court for recovery of the premises. The parties may however agree to resort to any of the suitable alternative dispute resolution mechanisms such as Arbitration.
Gradually, we have come to the end of this academic tour. You sure have learnt that your landlord has no right to eject you from your apartment without issuing the important notices discussed earlier. However, the law should not be used as a weapon to fight or defend an unjust cause.
#Pay your rents. #Be a good tenant.
I will surely write you again. But until then, thanks for reading.
Written by: Desmond C. Otikpa
Facebook: Desmond C. Otikpa
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