So why Typically the Law Was Created to Favour Tenants at The Expenditure of Their Landlords
After on a time, before the arrival of contemporary legislation regulating Landlord and Tenant relations, Tenants had been at the mercy of their Landlords who wielded and exercised too much powers in excess of them. Then, the Landlord experienced the energy to unilaterally improve lease and the Tenant was not in a position to concern the increment however arbitrary, unconscionable and unjustified the increment was. The Landlord also had the power to evict the tenant without having advancing any purpose for undertaking so. He was beneath no obligation to give to the Tenant discover of his intention to terminate the tenancy or of his intention to evict him. If the Landlord needed to evict a Tenant from his property, he was entitled to use pressure or to resort to self-support to do so. Certainly, the electricity of the Landlord in people days above the Tenant understood no bounds.
And so it was that the Tenant stood weak, powerless and vulnerable in the experience of the huge powers of his Landlord. His potential to discount effectively with his Landlord was eclipsed and without a doubt extinguished by the too much, arbitrary and autocratic powers of the Landlord above him.
This point out of affairs gave increase to the imbalance and inequality that have come to characterize the relationship in between Landlord and Tenant today. At that time, the romantic relationship of Landlord and Tenant was a contractual one involving two unequal parties, with the Landlord as the strong celebration and the Tenant, the weaker get together. The terms and circumstances of a tenancy or lease settlement have been offered to the Tenant on a just take-it-or-leave-it basis. The Tenant had no say as to his rights, pursuits, obligations and duties underneath the agreement. It was thus the require to appropriate the injustices, abuse, oppression and exploitation that Tenants suffered at the hands of their landlords that necessitated the intervention of government rules in contracts involving landlords and their tenants. These regulations get the form of legislative enactments popularly referred to as Tenancy Laws, Landlord and Tenant Laws or Lease Control and Restoration of Premises Rules. In Nigeria, numerous regulations have been enacted to defend tenants from the excesses of Landlords.
The Federal Federal government of Nigeria as well as the various states has made several legal guidelines on the matter. Laws on Landlord and Tenant relations currently in Nigeria contain:
one. The Recovery of Premises Act, 1990 which is the regulation regulating Landlord and Tenant relations in Abuja
2. Belvona and Recovery of Premises legal guidelines of various states in Nigeria.
three. The Tenancy Regulation of Lagos Point out, 2011.
Be aware that these regulations are related in provision and effect, with only minor variations. The goals of these rules are twofold:
(one) To afford tenants the best achievable security in opposition to exploitation and oppression by landlords by preventing arbitrary increment of rent and the unlawful eviction of tenants.
(two) To equilibrium, unify and harmonize the passions and rights of the landlord with people of the tenant and thus prevent inequitable and unfair bargains in which one social gathering gains at the expenditure of the other celebration.
Regrettably nonetheless, these laws have failed to impact or achieve the much essential stability and equity in the rights, pursuits and obligations of Landlords and Tenants. Instead than correcting or curing the inequity, imbalance and inequality in the balance of bargaining powers and positions of the Landlord viz-a-viz the tenant, what these regulations have accomplished is a near complete reversal of the harmony of bargaining power in favour of the Tenant. These laws have turned the bargaining table against the Landlord and tilted the stability of bargaining electrical power in favour of the Tenant.
Contrary to well-liked impression that the tenant is the weaker social gathering in Landlord-Tenant connection, the Landlord who was beforehand the more robust and dominating celebration in the Landlord-Tenant relationship is now the weak social gathering. This is since the law has empowered the Tenant to cut price efficiently and sometimes ruthlessly, at the expenditure of his landlord. In fact, the regulation has striped the landlord of his electricity to bargain effectively with the tenant. The need of the legislature to find the money for Tenants security from the excesses of Landlords is dependable for this sorry point out of affairs. The decision of the legislature to safe and assure the tenure of tenants by imposing limits on the power of the Landlord to recover possession of his premises from Tenants is at the root of the Landlord’s present woes and misfortune.
This is why it is typically mentioned that it is less complicated for a camel to move via the eye of a needle than for it is for a Landlord in Nigeria to recuperate possession of his premises from his tenant. The issues seasoned by landlords in recovering possession from tenants is as a consequence of statutory protections entrenched in Nigerian regulation by which tenants are sought to be secured by guaranteeing and securing their tenure. To safe and ensure a Tenants’ tenure and to avert unlawful or forceful evictions, Nigerian regulation offers that exactly where a landlord desires to repossess his premises from a tenant, he should apply to courtroom for an order to recover possession, unless of course the tenant voluntarily relinquishes possession of the premises. As we shall soon see, by depriving the landlord of his energy to repossess his premises and investing identical in the courts, the tenant is thereby promoted and elevated to a position in which he stands above and over his landlord. Apart from the rule demanding landlords to sue in courtroom to get better possession of their premises, there are many other impediments imposed by law on the right of a landlord to recover possession of his premises. The cumbersome and time throwing away prerequisite of serving the tenant notices of landlord’s termination of the tenancy on a specified date as effectively as of landlord’s intention to use to court docket to get well possession is main amid these kinds of impediments.
Even more offensive and destructive of the appropriate of the landlord to repossession of his premises in Nigeria is the principle of statutory tenancy. What this concept implies is that a tenant whose phrase has expired (and who ought to have moved out of the premises) enjoys the total protection and backing of the law to continue to be on the premises and are not able to be ejected from the premises unless a courtroom orders him to vacate the premises. Such a defaulting tenant is entitled to services of statutory notices like any other variety of tenant. The Supreme Court docket in the circumstance of African Petroleum Ltd. V. Owodunni went as much as holding that a statutory tenant(i.e. is one whose expression has expired but who has refused to go out) can sue the landlord for trespass to land. According to the Apex court, these kinds of a tenant stands in the exact same position as a tenant whose tenancy even now subsists. One wonders if the legislation encourages tenants to be undesirable tenants who violate or dishonour their covenants with landlords.
That the landlord now stands in a precarious placement the place he hazards getting rid of his expenditure in his home is consequently fairly clear. To some folks, the assertion that the landlord is the weaker social gathering and that he suffers serious hardship at the occasion of his tenants appears preposterous and untrue. Nevertheless, we only want to remind ourselves of the fact that possession (albeit, unique possession) is the really foundation upon which landlord and tenant interactions are founded to appreciate the truth and veracity of that assertion. It is a infamous reality that the impediments and limitations imposed by legislation on landlords’ correct to repossess his premises unnecessarily and unjustly delays, frustrates, suspends and postpones the right of the landlord to possession of his premises.The emasculation of the landlord’s electricity to repossess his premises has left him at the mercy of the tyranny and fraud of his tenants. It is typical knowledge that tenants now use the regulation as an instrument to perpetuate fraud on their landlords. Emboldened with information of the protection accorded and afforded them by law, tenants now recklessly (and at times intentionally) violate and dishonour their covenants with their landlord. It is typical to see tenants who are in arrears of hire for several many years refuse to transfer out of the premises. This is because they know that they can use the courts to delay and frustrate the landlord’s right to possession.
The inefficiency of the judicial method and the lengthy delays knowledgeable in our courts is a excellent instrument of war and resistance in the arms of a lot of a tenant. It requires an regular time period of 24 months in court docket for landlord to recuperate possession of his premises. If the tenant is geared up with the power to hold off and frustrate the appropriate of the landlord to repossess his premises via the legal and court docket technique and by so doing to elongate his phrase, then he is without a doubt the grasp of the bargaining table. As they say, he who has gold helps make the guidelines. In the context of our dialogue, he who is in possession and decides when and how to relinquish possession helps make the principles. That particular person is the tenant.
This favoritism and one particular-sided affection of the regulation in the direction of tenants at the detriment/cost of their landlords is a trigger of worry in the genuine estate and development industries in Nigeria. The ugly phenomenon of tenants’ refusal to give up possession soon after the expiry of their terms has induced and carries on to trigger untold hardship on landlords and real estate buyers.
In accordance to Oni, “… the charge of default in rent payments amongst tenants in Lagos metropolis is substantial. In a study of one hundred twenty estate surveyors,twelve (symbolizing 10%) stated that tenants normally slide into arrears for up to six months,86 (about 72%) said that default is among seven and twelve months and twenty two ( about eighteen %) had been of the impression that rents are owed for more than twelve months. In other words and phrases, the research exposed that 90% of the respondents had seasoned default in lease for more than seven months… “
Thus, landlords and traders shed billions to tenants who default in payment of rent. The soreness of shedding rental revenue owing to default by tenants to spend hire and to honour other obligations below the tenancy agreement is aggravated by the trouble of repossessing the premises from poor tenants. The legislation forbids vacation resort to additional-judicial means to repossess premises. It prohibits the use of pressure or any other implies of self-assist to evict tenants. A landlord who intends to repossess his premises from his tenant have to seek out his solution from the courtroom and the judicial system the place he faces uncertainty as to the end result or period of the method. Even when judgment is ultimately entered in his favour, the landlord would have invested an inordinate quantity of time before judgment is provided and may expended a lot more time in executing the judgment.
The effect of this state of affairs is that it discourages expenditure in the real estate and construction sectors of the Nigerian financial system. The deficiency of investor self confidence in these sectors implies that much less properties will be developed and this is not excellent for the housing sector in Nigeria. The legal and regulatory bottlenecks and challenges avoiding simple and rapid of recovering of premises from tenants is naturally a significant investment danger.
Nigeria is a country with a inhabitants of a hundred and seventy million people most of whom are in dire want of first rate, inexpensive housing. According to the Planet Financial institution Report, Nigeria currently has a housing deficit of 17 million houses. A whooping sum of N59.five trillion is required to bridge this gap in housing requirements. With the existing point out of our rules and the judicial technique with its bias for unscrupulous, irresponsible tenants, there is no way that this housing deficit can be bridged.
To say that Nigerian legislation on landlord and tenant relations has failed to equilibrium or harmonize the pursuits and legal rights of the landlord with those of the tenant is to condition the clear. For this explanation, these regulations have unsuccessful to tackle the very issue for which they have been enacted. Instead, these legal guidelines have developed new difficulties.
We agree with the argument of one American author who suggests that “… as long as authorities management is the only substitute for industry control, the results will be arbitrary and unfair. By providing the parties to the landlord-tenant agreement much more voice and tenants an equivalent voice, the govt would have lifted itself off the backs of the men and women and nevertheless be a far better enforcer of tenants’ rights… “
We agree with submission of this writer that the remedy to the issue of inequality of bargaining electricity between landlord and tenant lies neither in more authorities regulation nor in a cost-free industry program in which there is no regulation at all. Relatively, “the answer is to permit the parties, not the federal government, set the phrases of the rental agreement although the federal government sets the exterior restrictions.”
We for that reason need to influence a total overhaul of the recent legal and regulatory regime in Nigeria and substitute it with a method that balances the pursuits and legal rights of the landlord with individuals of the tenant.