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…into a house, the owner agrees to release the house and charges one hundred thousand every month, and you take it, you have accepted. For instance, you are going to Maryland and a vehicle passes calling for Yaba, you get in and indicate your exit at Maryland. What you have just done is agree with the transporters to drop you at Maryland, even though you didn’t say anything.
The fact that you entered is an acceptance that the man is going to take you safely to your destination. By being on the road, there is a presumption in law that this man knows how to drive. You don’t get into a bus and say “Driver how long have you been driving? Would you jam somebody?” The new law says in section 3, that tenancy agreement for the purpose of this law be deemed to exist where premises are granted by the landlord to a person, for value whether or not it is express or implied, oral or written or partly oral or partly written; or for a fixed period.
Under the tenancy agreement, we have what is periodic tenancy and leases. Who knows what a periodic tenancy is? There are two types of tenancies. They are more, but fundamentally, there are two: periodic tenancy and leases or fixed term. This area of law, is supposed to be part of your tenancy agreement. It is important we differentiate, because many of us are in leases without knowing that.
For example, a young man called me up one day and said my landlord wants me to move and am not owing him, he just gave me 7 days’ notice. I asked him if he was sure it wasn’t quit notice, he insisted. I found wrong it at the time because the young man pays yearly and was supposed to be given six months quit notice. The young man was ready to take it up in court. He later called me to say that the landlord came for pre-vacation inspection. I had not seen his tenancy agreement at the time. By the time we examined it, I found out that he was on a lease of two years certain. Make sure you also look out for this term in your own agreement. If it says 1, 2 or 3 year certain, know you are sitting on time bomb.
The word certain is very important, because it indicates a fixed tenancy. It is also called lease; although in everyday usage people interchange them as ‘let/lease’. Strictly speaking, in legal terms, a lease is supposed to be for a fixed term. For instance, if you are given a house with such terms, it means that after two years, you are no more a tenant. Do not expect a quit notice in this case because for leases and fixed terms, you do not get a quit notice. What the tenant receives is something called seven days’ notice of intention to go to court to recover the property. This calls for a review of our tenancy agreements in our different houses, so that we know where we stand. The law of the fixed term is the same all over the world.
RESPONSE (MAN): To us, tenancy, lease, and fixed term are three different things. The tenancy we believe is the short duration where you have like two years and less. There are others known as licensee and short leases. I believe that even the two years certain provides room for renewal. In the financial industry, this lease is works differently.
BUORO: Of course, there is the periodic tenancy, where tenancy is renewed whether monthly, every six months, or yearly. Note that in this case the landlord cannot ask the tenant to leave without a month, three, or six months’ notice as the case may be. I repeat that though a notice is needed here, you don’t need it if fixed term. It is called ‘efluction of time’, lapsed time that is. There are short and long leases and then you pay every five or ten years with option to renew. Of course, you have to write and express your desire to continue the agreement. Some term Certains don’t have options for renewal and you can force it on the landlord.
The danger, the practical reality is that many Nigerians live in such accommodations without knowing it. We expect to notification by quit notice when ignorant of the operating clause in our tenancy agreement.
RESPONSE (MAN): For the sake of the law, what you speak may be true, but in practical situations, I do not believe the fixed term scenario to be possible. Because I do not see landlords give out houses for rent without the option of renewal for residential purposes, perhaps not for commercial. I think the lesson here is that a would be tenant should go through the contract for the occupation of a house before moving in.
BUORO: There is no law that says that a lease must exceed one year. I advise landlords who have been having difficult tenants to use fixed terms even though I know I would not enforce it. That way, the landlord knows that after two years the tenant leaves. Except the tenant is a nice person in this case, then renewal of the rent can be accepted.
RESPONSE (MAN): So the difference between the periodic and the fixed term is the option of quit notice. What if I am a landlord and I demand renewal of rent not by payment but by fresh application by the tenant as If new based on observation?
BUORO: If you put that in the tenancy agreement why not.
RESPONSE: I am in real estate. Concerning the tenancy agreement, can you agree for two years but pay cash for one year?
BUORO: What is the benefit of the arrangement?
RESPONSE: No I meant two years lease and one year advance payment.
BUORO: Why not? Because when you have the lease arrangement, you are not supposed to pay it all at once. You could pay every five or ten years as the case may be. Landlords issue long leases to enable them make money over time say twenty five years for instance. Its not like Lagos where people hardly wait the completion of a house before they move in; unlike other places where the house says for years no buyer or tenant. In advanced countries where you have low cost housing, the buildings remain for years. In that case, when a tenant comes he is given twenty years lease with to option to pay yearly instalments.
In business, if you get a good location, it is better to take a long lease, so that you are not easily knocked off from that environment.
RESPONSE (MAN): I am an estate consultant. I do not know what to do with a landlord who refuses to give a tenancy lease agreement. How can I prove payment otherwise?
BUORO: Whether he gives it or not, the law says that if by implied terms, or body language you occupy the house, you are a tenant. Whether express or oral, it is deemed that all the stipulated conditions are being met. The new law though makes it compulsory for any landlord to issue payment receipt. The new law under section 5 says that: as from the commencement of this law,
all landlords shall on payment of rent by a tenant be obliged to issue payment receipts to their tenants in respect of such payments. If the man does not give tenancy agreement, it is not illegal, but there must be a payment receipt. This payment receipt shall state: date on which rent was received, names and addresses of the landlord and tenants,
RESPONSE: Most times it’s the agents who receive payment for the landlord, is it against the law?
BUORO: You are the principal. You are bound by whatever our agent does. Whether the agent or the landlord issues the receipt its okay. The landlord needs to be careful, because the agent could issue a receipts that is more than what he gave him.
RESPONSE (MAN): I want to use myself as an example. There’s no agreement between me and my landlord. He gave me agreement four months after moving in. I have just learnt about the certain clause. What happens in my case where there was no agreement at the beginning and its just coming?
BUORO: Have you signed the agreement?
BUORO: Because you can tell him that, you do not approve of it and begin an argument that will lead you to court to settle your issues. However, once you have signed the agreement that is the end.
RESPONSE (MAN): But by moving into the house, he has put into effect the implied agreement.
RESPONSE (MAN): What do I do with a landlord that refuses to give a tenancy lease agreement? How can I prove or what evidence can I bring to show payment of yearly rent? He insists he does not give tenancy agreement.
BUORO: The moment you agree, you are a tenant, and he lets you take the property you are a tenant. The law says that if by implied terms or body movement or language you enter the house, you are his tenant, whether express or oral. This new law makes it mandatory for every landlord to issue a payment receipt. The law says they are obliged to issue a rent payment receipt. If the does not give a tenancy agreement, it is okay, it is not against the law.
Note that the payment receipt is not a small white paper. By packing in, there exist a term of landlord tenant relationship. Because the landlord did not give tenancy agreement does not mean he is not his tenant. If the agreement is issued after the tenant has moved in then it creates a problem. That is why we advise landlords to issue it before the tenant moves in, because the issue of period or lease has not been settled. This will have to be settled in court if conflict arises, because you can’t hold me to something I didn’t sign.
RESPONSE (MAN): I said earlier that there is always a loophole to every law.
BUORO: Of course!
RESPONSE (MAN): In this man’s case, what evidence is he going to present to the court.
BUORO: The court has its ways. Under cross-examination, the truth will come out. When you are telling a lie, there are always loopholes too. The burden of truth/proof lies with the tenant who has to prove payment. You must note that you don’t do lease with implied or oral. Leases are always written. You know I cannot teach you the whole law today. If you want to do that, you can go and do seven years as I did.
On the payment receipt, besides names and addresses, the description and location of the premises in which the rent is paid is included. This receipt is much different from the smaller one I told you of earlier. This one has date on which the rent is paid, the names of tenant and landlord as well as their addresses, description and location of the house e.g. it’s a two bedroom flat located at so and so place, the amount of rent paid and the period it covers. Under the new law, this must be written. If we abide by this, the receipt is going to be about a page long. I have not seen anyone myself. Where for any reason, this is not issued, the landlord will be penalised to pay N100, 000
RESPONSE (MAN): What if an agent issues the receipt? Is it acceptable? Because it the agent’s office address that will be stated.
BUORO: Whose agent is he?
RESPONSE (MAN): The principal.
BUORO: Then you have your answer. Note that the description of the premises must include specifics about the particular property about to be possessed by the tenant.
Let us go to the issue of quit notices. When you leave in a premise and the landlord for one reason or the other says he wants the tenant out of the house. What is the quit notice supposed to be? Tenants usually complain to me that the landlord gave them the quit notice unfairly, because they are not owing and their money has not expired. Normally, when tenants are issued this notice they stop paying rent. I want to hear from you. Is it right to give a quit notice when rent has not expired? No School of Estate person should answer this, I would like to hear from others.
RESPONSE: By my own understanding, the landlord has the right to give quit notice six months before the expiration of that rent.
BUORO: If you pay every month, does he have to give you six months.
RESPONSE (WOMAN): There was incidence this happened to people close to me. They usually paid six months; they paid for the next six months only for the landlord to come two months later and give them three months to pack out. The landlord was bent on it because there was a strong lawyer backing him. They (landlord and lawyer) did all sorts of things to make them leave, including getting into the kitchen to cut off water supply. I advised them to just pack, but they insisted that they must take the case to court.
Finally, they agreed to move out, but just before they left, the landlord came to plead that he was sorry, he wanted peace, that it was the devil at work. Soon as my friends moved out, we learnt that the landlord’s mother moved into their old flat; because the landlord’s wife needed her mother to stay in a place of her own. Not everybody can take this sort of treatment.
BUORO: Remember I told you that notices are the crux. The notice to quit must be valid. To be valid, it has to be written in such a way that it mentions the name of the tenant who has been served, the description of the property which he is holding, and the period in which the rent expires. All of these must be included in a valid quit notice. I may not be able to explain in a way you will understand. It is appropriate for the quit notice to be given when the rent is still running.
This is a major distinction between the old law and the new. In the old law that was protective of tenants, if you were a monthly tenant then you got a one month notice, if quarterly then three months. The law was silent on six months tenants then, but the yearly tenants had to get six months notice. But the six months notice of the old law was very peculiar. It says that the six months notice must end on the eve of the anniversary. If you paid your rent every January 1st, and your landlord doesn’t give you a quit notice that ends on December 31st, the quit notice is invalid, because the law said the quit notice must end on the eve of rent anniversary. Any time before this was invalid.
However, the new law says any six months, whether the rent is running, or it has expired. It is safer to allow the six months to end with the rent. Because the whole essence of saying that the rent ends on the anniversary is so that you know the rent period is ended, no one owes the other. It means the anniversary is the day the rent should be renewed. The new says any six months because landlords were complaining and angry.
The old law stipulated that the notice had to be delivered to the specific tenant personally. If you give it to my twin brother, I’ll go to court and say you have not served me any notice. Even if it is delivered to my door, I am unaware because you didn’t serve me Valentino Buoro personally.