Have you ever wondered why a tenant is so powerful, such that at some point he becomes a torn in the flesh of the landlord? There have been circumstances where a landlord would even have to beg the tenant to leave his property.
Have you asked yourselves why landlords don’t manage their property themselves? Once property is concerned, most landlords would happily hand it over to a lawyer to manage.
The answer to the above posers is simple. Once a landlord misfires in dealing with his clients, it will cost him most times more than the amount he collects as rent to recover his property. Donation of the possessory right by the landlord means that he must follow the legally established process to recover same. Sometimes it may take him years to do. In some cases he may end up spending a fortune to recover it to.
Generally, the nature of the relationship between a landlord and his tenant is one of contractual. The law empowers the parties to choose their terms and each of them is bound by them in law. Where parties fail to agree on their own, the various States’ laws on tenancy will hold sway. The performance of either of the parties to observe the terms of their agreement entitles the other the right of redress in Court.
In tenancy matters, one thing is always paramount, and that is, once parties have successfully created the landlord-tenant relationship, the landlord retains his proprietary/ownership right while the tenant is entitled to POSSESSORY RIGHT only, and no other.
The duration of the tenant’s occupation of the property is immaterial. The parties are bound by their respective covenants in the tenancy agreement. The implication of this is that upon payment of rent, in addition to complying with the covenants, the tenant has unfettered right to peaceful enjoyment of the property, the breach of which entitles him the right to action in both civil and criminal law.
One of the hallmarks of the tenancy right is EXCLUSIVITY OF POSSESSION. The tenant reserves ALL rights to the exclusion of all others including the landlord over the property.
What the Landlord Must Not Do
No matter the breach committed by a tenant over a landlord’s property, the landlord must not do any of the following:
- Forcefully break into the tenant’s apartment;
- Unlawful locking of the tenant’s apartment;
- Evicting the tenant without ensuring that he has satisfactorily issued the tenant the necessary statutory notices;
- Unlawfully preventing the tenant from gaining entrance into the property;
- Doing anything inimical or inconsistent with peaceful enjoyment of the property by the tenant i.e. Doing anything to prevent the tenant from peacefully enjoying the property etc.
The doing of any of the above things entitles the tenant a right of action against the landlord, usually in both criminal trespass and civil trespass.
What then is Trespass?
Trespass occurs where the landlord without lawful justification enters upon the property in the possession of the tenant and or unlawfully does anything that affects the tenant’s peaceful enjoyment of the property.
The law of trespass entitles the claimant the right to claim damages for wrongful infringement. If the claimant proves any specific damage, he will be entitled to same in addition to the award of nominal damages.
Trespass is one of the tortious actions that is actionable per se. This means that the award of damages by the Court is not dependent on whether the Claimant proves any specific damage/injury. The law presumes injury in trespass.
The tenant can as well petition the Police against the landlord for criminal trespass. It is immaterial whether he has initiated an action against the landlord in the tort of trespass. The landlord may in some circumstances be prosecuted.
The High Court of a state has jurisdiction over Land matters. Section 39 of the Land Use Act, grants the High Court of a State exclusive original jurisdiction over certain matters listed under it. This means that whatever falls under the matters listed under section 39 must first be brought to the High Court of a State to hear the matter.
In conclusion, the law protects both the tenant and the landlord and prohibits one from exploiting the other. The essence is that whatever that must be done must not derogate from the law. The law has made specific provisions entitling either a landlord or tenant specific rights and duties. Taking laws into their hands would compound their woes.
It invariably means that having a lawyer to manage your property is not only necessary but highly indispensable. Both the landlord and the tenant need a lawyer for proper guidance. The law is a respecter of no man.
Written by GABRIEL CHIKWADO EZE
One comment on “Tenant’s Right of Action In Trespass Against His Landlord”