As tenants, it is very important to ask for tenancy agreements because it provides clear terms and prevents unwarranted possession of property after expiration of tenancy and avoids arbitral increase of rent. If the tenant requires a short term lease of less than three years, it would be more appropriate to draft a ‘Tenancy Agreement’ which is not required to be by deed, it could be executed under hand (a simple contract that is simply signed by the parties involved, it does not require a formal seal). The first thing is to understand the types of tenancy because it helps the landlord calculate the length of notice to quit, and to guide the tenant properly. There are certain times where the type of tenancy is not agreed by the parties, so it becomes difficult to know the nature of the tenancy. In this case, the nature of tenancy is determined by the period when the rent was demanded or paid. The two major types of tenancies are:
Periodic Tenancy: This is the most common type of tenancy in Nigeria. This type of tenancy is ascertained by referring to the period or time when rent was paid or demanded. The landlord and tenant agree on the duration period of the tenancy(that is, the commencement and expiration date); but if there is a springing interest (an interest in property where the person owns the property after something occurs or at a specified time), it can only be determined or brought to an end by proper notice. Thus, in this case, the tenant can renew the agreement even after the duration expires and the landlord cannot evict the tenant without due process of law. Like the fixed tenancy, the duration of the term is known; whether it is monthly or yearly but unlike the fixed tenancy, the periodic tenancy has automatic renewal of the term so when the maximum duration of the term (a month or a year) expires, it automatically continues for another definite term of the same period until a proper notice to quit is served.
Fixed Tenancy: This is a type of tenancy in which there is a certain commencement date and a definite cessation date. This type of tenancy lasts for a set period e.g one year. It does not have a maximum length of time. After the expiration of the fixed tenancy, it automatically moves to periodic tenancy unless otherwise agreed by the parties. Generally, when the time for the tenancy lapses, the relationship between the landlord and tenant is terminated and the landlord may take possession through the due process of law.
Tenancy at Will: Tenancy at will arises when the tenant with the consent of the landlord agree on the terms that either party may determine the tenancy at any time, that is, bring the tenancy to an end. When a tenant is allowed to live in a premises for an indefinite period without paying rent, such tenant is a tenant at will and either the landlord or the tenant can terminate the tenancy at any time. Where a person is in possession of another’s property with consent but there is no agreed terms or condition, such a person is a tenant at will. This type of tenancy can be terminated by notice of intention to quit, by leaving the premises with the consent of the landlord or by committing waste. If any of the parties die or the tenant does any act that is inconsistent with the tenancy at will, the tenancy will terminate.
Tenancy at Sufferance: Where a tenant whose term of tenancy has expired but still holds possession of the property without the agreement or disagreement of the landlord, such a tenant is a tenant at sufferance. This tenant is regarded as an adverse possessor (a person who acquires legal ownership of another’s property after a certain period of time has passed) and time runs in his favor under the Limitation Law. Thus, if after 12 years has passed and the landlord has made no action to recover possession of the property, he will not be able to do so again and the tenant will have legal ownership over the property. Note, where the landlord enters an agreement to collect rent, it no longer becomes tenancy at sufferance but a regular tenancy.
Statutory Tenancy: A statutory tenant is one who, when the contractual tenancy expires, continues to occupy the property of the landowner contrary to the landowner’s will, by virtue of special statutory provisions as seen in the case of Oduye v Nigeria Airways Ltd. It is similar to tenancy at sufferance, in the sense that the tenant comes into occupation as a right but ends up holding over the property without right. The only difference is that in statutory tenancy, a statute gives security of tenure to the tenant after the expiration of the contractual tenancy. However, the tenant must have a term or interest in the premises for the tenancy to be lawful. The law will not give protection to a squatter or trespasser. Payment of rent is also not a requirement under this tenancy so it does not matter he pays rent or not but he is still required to perform the obligations of a tenant that was imposed on him at the original contractual tenancy.
Tenancy by Estoppel: Where the landlord grants a lease of property to a tenant with the full knowledge that such tenant does not have an interest or title in the leased property, a tenancy by estoppel is created. The parties involved in this type of tenancy are precluded or prevented from denying the existence of a landlord and tenant relationship. This tenancy has all the characteristics of a true tenancy and the parties are bound by the covenants in the agreement, but it becomes a true tenancy when the tenant acquires title to the property.
As a landlord, it is important to take note of the stated points when renting a house. Also, as a prospective tenant, ensure you read through every legal document with a lawyer and take note of the above points. Note that failure on the part of the tenant to adhere to the covenants and obligations in the agreement will be a ground for eviction from the rented property. Both parties have remedies available to them in case of a breach of covenant by either party.
In renting a house, it is also important to determine whether an occupier is a tenant or licensee, and this depends on the intention and relationship between the parties as seen in Finbow v Air Ministry [1963] W.L.R 697 at 706. A license is a relationship by which the licensee is granted a right to use the premises without becoming entitled to exclusive possession. It merely gives the licensee a personal privilege with no interest in the property unlike a tenancy which entitles the tenant to exclusive possession over the premises amongst other rights.
