Why You Need Written Tenancy Agreement For Recovery of premises

written tenancy agreement

Need a strife-free recovery of your rented premises? signing a written Tenancy agreement  should be your best bet. Among other precautions and legal measures you need to take, written tenancy agreement should be your top priority.

May be you are about to let you premises to a tenant, and you don't know what tenancy agreement is all about. Or may be you know, but still don't think is necessary in a landlord and tenancy relationship.

Tenancy Agreement is a contract between a landlord and a tenant which spells out the terms and the conditions of the relationship. It binds both parties, and it can be entered orally or in writing.

Our concern here is written Tenancy agreement because it's easier to proof, and more enforceable in law than tenancy agreement made orally.

I have below stated Six reasons why landlords or property owners in Nigerian need written tenancy agreement.

  1.  Written Tenancy Agreement Provides Express Terms and Conditions of The  Tenancy

There are certain rights and obligations implied by law which governs Landlords and Tenants  relationship in Nigeria. They are basically referred to as covenants in lease. These rights and obligations are enforceable in courts in Nigeria  

The implied Rights of a tenant under the tenancy law of lagos state, 2011 are:
  1. Reasonable privacy
  2.  Freedom from unreasonable disturbance
  3. Exclusive possession of the premises, subject to the landlord's restricted right of inspection 
  4. The use of common areas for reasonable and lawful purpose 
  5. Where a tenant with the previous consent in writing of the landlord, effects improvement on the premises and the landlord determines the tenancy, such a tenant shall be entitle to Claim compensation for the effected  improvement on quitting the premises

       B. Implied Covenant of a Tenant

  1.  To pay rent as at the time and the manner stated
  2. To pay all existing and future rates and charges not payable by the landlord by law 
  3. To keep the premises in good and tenantable repairs, reasonable wear and tear expected
  4. permit the landlord or his agent during the tenancy at all reasonable hours in the daytime after reasonable written notice, to view the condition of the premises and to effect repairs in necessary part of the building.
  5. Not to make any alterations or additions in the premises without the written consent of the      landlord 
  6. Not to assign or sublet any part of the premises without the written consent of the landlord.

Also, some of the obligations of  landlords under the same law are:
  1.  Not to disturb the tenant's quiet and peaceable enjoyment of the premises.
  2. Pay all rates and charges as stipulated by law.
  3. Keep the premises insured against loss or damage.
  4. Not to terminate or restrict a common facility or service for the use of the premises.
  5. Not to seize or interfere with the tenant's access to his personal property.
  6. Effect repairs and maintain the external and common part of the premises...

However, if you want an additional obligation from a tenant outside the above implied rights, it ought to be expressly provided in the tenancy agreement for it to be valid and enforceable.

You might expressly state in the tenancy agreement as follows :

  1. That if the Tenant makes any unauthorized alterations he shall if the Landlord requires him to do so, have to restore the premises to as nearly as may be possible, its original condition at his  expense

2.    Written Tenancy Agreement Settles The Ambiguity Associated with Statutory Notices  

Determination of tenancy is the hardest bit of recovery of premises. Because of the ambiguity attached to issuance of statutory notices, most landlords prefer to specify the exact notice in the tenancy agreement.

Section 13 of the tenancy law of lagos state provides thus:

13.-(1) where there is no stipulation as to the notice to be given by either party to determine the tenancy, the following shall apply- (a) a week’s notice for a tenant at will; (b) one (1) month’s notice for a monthly tenant; (c) three (3) months notice for a quarterly tenant; (d) three (3) months notice for a half-yearly tenant; and (e) six months notice for a yearly tenant

 If you don't expressly agree on the type of quit notice you will issue to a tenant, the statutory notices as provided in S. 13 (1) of the Tenancy law, 2011 will apply.

But you can alter the requisite statutory notices due to a yearly tenant, for instance, by stating expressly in the tenancy agreement the type of notice you will give as follows:

"That either party shall be entitle to terminate the tenancy hereby created by given to other party one month's notice in writing of such intention."

3.  For Ascertainment of The Commencement Date

Sometimes, parties are confuse about the commencement date of the tenancy. This commonly happens where there is no receipt issued to the tenant, and where everything was done orally.

Written tenancy agreement makes it less cumbersome for parties to pinpoint the exact date the tenancy begins. 

Moreover, written tenancy agreement is a deed, and deeds commence on the  date of signing and delivery.

Section 13-(6) of the Tenancy Law, 2011 provides as follows:

 " The nature of a tenancy shall, in the absence of any evidence to the contrary, be 
    determined by reference to the time when the rent is paid or demanded".

The presumption of the law from the above is that parties can dictate the commencement date of the tenancy by looking at the date in the rent receipts.

But where their is no receipt for initial rents and no binding written agreement, what will become of the tenancy? So, Written tenancy agreement is the only way out of this confusion.

Furthermore, Court, in a proceedings for recovery of premises, looks at the written tenancy agreement to ascertain the commencement date of the tenancy.

4.   Written Tenancy Agreement Makes Provision For Damages and Compensation 

Parties Can State quantum of damages that are accrueable to each other the Tenancy Agreement. So upon breach of any of the covenants or where the is an arrears of Rent, it won't be difficult to know the exact quantum of damages the defaulting party will pay.

 As a landlord, you can increase or reduce quantum of damages payable by a tenant. You can include that clause in the agreement. The law permits you to do so. Section 25 -(1) of the Tenancy law provides

   " unless the agreement expressly stipulates otherwise, the Court shall have power to make an order for possession upon proof of any of the following grounds – 
(a) arrears of rent; 
(b) breach of any covenant or agreement; 
(c) where the premises is required by the landlord for personal use "

However, this provision is inapplicable where

(a) the premises is being used for immoral or illegal purposes;
(b) the premises has been abandoned;
(c) the premises is unsafe and unsound as to constitute a danger to human life or property; or
(d) the tenant or any person residing or lodging with him or being his sub-tenant constitutes by conduct, an act of intolerable nuisance or induces a breach of a tenancy agreement. See section 25 -(2) of  the law

5.   Written Tenancy Agreement Makes Determination of Tenancy More Easier 

Often landlords complain about how Tenants are overly protected by the law in situations where the tenancy ceases.

In section 13 -(2) of the law for instance, it is provided that in the case of a monthly tenancy, where the tenant is in arrears of rent for six (6) months, the tenancy shall lapse and the Court shall make an order for possession and arrears of rent upon proof of the arrears by the landlord. 

This is quite over protective of a monthly Tenant because it keeps the landlord waiting patiently until when the tenant is in arrears of rent for six months before he can act.

But you care remedy this defect in law in a written tenancy agreement by stating expressly in the agreement as follows :

  " Provided always that if the monthly rent hereby reserved
 shall for any month fall into arrears for 30 days after it shall have been
 due whether or not formally demanded, or upon the occurrence of a
 breach of any of the tenants’ covenant herein contained, the Landlord
 may re-enter the premises or any part thereof in place of the whole and
 thereupon the tenancy hereby created shall absolutely cease and determine ". 

If you include this type of covenant in the tenancy agreement, you are not bound by the provisions of section 13 -(2). You don't need to wait for tenant's arrears of rent to accumulate up to six months before sue possession of the premises.

6.  Written Tenancy Agreement Gives You The Power To Choose How To Settle Dispute.

Because the cost and time involve in litigation, you may not like to rush to court in event the tenancy turns sour    You just need cheaper and intimate way of settling disputes.

There is a provision for court connected alternative dispute resolution in the tenancy law. Wherein parties are allowed to agree expressly on how and where to channel their disputes. Provided it won't oust the jurisdiction of the court. See Section 2 -(3) of the Tenancy law

If you spelling out an alternative dispute resolution clause in the tenancy agreement, it will be valid, binding and enforceable in court where parties resort to arbitration or other court connected processes for settlement of disputes. Section 30 -(1) provides thus:

        " A valid agreement to arbitrate shall be upheld and be enforceable in the Court while an arbitration clause or agreement in a tenancy or lease agreement shall not be construed as an ouster of the Court's jurisdiction "

Are there other reasons why you think Landlords and Tenants should sign written Tenancy Agreements? Let's hear it. You can either comment below or share it with me on facebook.