Why the Law Was Designed to Favour Tenants at the Expense of Their Landlords
Real Estate Law

Why the Regulation Was Designed to Favour Tenants on the Expense of Their Landlords

As soon as upon a time, earlier than the appearance of contemporary laws regulating Landlord and Tenant relations, Tenants have been on the mercy of their Landlords who wielded and exercised extreme powers over them. Then, the Landlord had the ability to unilaterally improve lease and the Tenant was not able to query the increment nevertheless arbitrary, unconscionable and unjustified the increment was. The Landlord additionally had the ability to evict the tenant with out advancing any purpose for doing so. He was beneath no obligation to offer 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 home, he was entitled to make use of pressure or to resort to self-help to take action. Certainly, the ability of the Landlord in these days over the Tenant knew no bounds.And so it was that the Tenant stood weak, powerless and weak within the face of the large powers of his Landlord. His capability to discount successfully along with his Landlord was eclipsed and certainly extinguished by the extreme, arbitrary and autocratic powers of the Landlord over him.This state of affairs gave rise to the imbalance and inequality which have come to characterize the connection between Landlord and Tenant in the present day. At the moment, the connection of Landlord and Tenant was a contractual one involving two unequal events, with the Landlord because the highly effective social gathering and the Tenant, the weaker social gathering. The phrases and situations of a tenancy or lease settlement have been supplied to the Tenant on a take-it-or-leave-it foundation. The Tenant had no say as to his rights, pursuits, obligations and duties beneath the settlement. It was thus the necessity to right the injustices, abuse, oppression and exploitation that Tenants suffered by the hands of their landlords that necessitated the intervention of presidency rules in contracts involving landlords and their tenants. These rules take the type of legislative enactments popularly known as Tenancy Legal guidelines, Landlord and Tenant Legal guidelines or Lease Management and Restoration of Premises Legal guidelines. In Nigeria, a number of legal guidelines have been enacted to guard tenants from the excesses of Landlords.The Federal Authorities of Nigeria in addition to the varied states has made a number of legal guidelines on the topic. Laws on Landlord and Tenant relations at the moment in Nigeria embody:1. The Restoration of Premises Act, 1990 which is the legislation regulating Landlord and Tenant relations in Abuja2. The Lease Management and Restoration of Premises legal guidelines of assorted states in Nigeria.3. The Tenancy Regulation of Lagos State, 2011.Observe that these legal guidelines are comparable in provision and impact, with solely minor variations. The objectives of those legal guidelines are twofold:(1) To afford tenants the best potential safety in opposition to exploitation and oppression by landlords by stopping arbitrary increment of lease and the illegal eviction of tenants.(2) To stability, unify and harmonize the pursuits and rights of the owner with these of the tenant and thereby forestall inequitable and unfair bargains the place one social gathering features on the expense of the opposite social gathering.Regrettably nevertheless, these legal guidelines have didn’t impact or obtain the a lot wanted stability and fairness within the rights, pursuits and obligations of Landlords and Tenants. Relatively than correcting or curing the inequity, imbalance and inequality within the stability of bargaining powers and positions of the Landlord viz-a-viz the tenant, what these legal guidelines have achieved is a close to full reversal of the stability of bargaining energy in favour of the Tenant. These legal guidelines have turned the bargaining desk in opposition to the Landlord and tilted the stability of bargaining energy in favour of the Tenant.Opposite to well-liked opinion that the tenant is the weaker social gathering in Landlord-Tenant relationship, the Landlord who was beforehand the stronger and dominating social gathering within the Landlord-Tenant relationship is now the weak social gathering. It’s because the legislation has empowered the Tenant to discount successfully and typically ruthlessly, on the expense of his landlord. Certainly, the legislation has striped the owner of his energy to discount successfully with the tenant. The will of the legislature to afford Tenants safety from the excesses of Landlords is liable for this sorry state of affairs. The choice of the legislature to safe and assure the tenure of tenants by imposing restrictions on the ability of the Landlord to get well possession of his premises from Tenants is on the root of the Landlord’s current woes and misfortune.Because of this it’s usually stated that it’s simpler for a camel to go by the attention of a needle than for it’s for a Landlord in Nigeria to get well possession of his premises from his tenant. The issue skilled by landlords in recovering possession from tenants is because of statutory protections entrenched in Nigerian legislation by which tenants are sought to be protected by guaranteeing and securing their tenure. To safe and assure a Tenants’ tenure and to stop illegal or forceful evictions, Nigerian legislation gives that the place a landlord needs to repossess his premises from a tenant, he should apply to courtroom for an order to get well possession, until the tenant voluntarily relinquishes possession of the premises. As we will quickly see, by depriving the owner of his energy to repossess his premises and investing similar within the courts, the tenant is thereby promoted and elevated to a place the place he stands over and above his landlord. Aside from the rule requiring landlords to sue in courtroom to get well possession of their premises, there are a number of different impediments imposed by legislation on the suitable of a landlord to get well possession of his premises. The cumbersome and time losing requirement of serving the tenant notices of landlord’s termination of the tenancy on a specified date in addition to of landlord’s intention to use to courtroom to get well possession is chief amongst such impediments.Much more offensive and harmful of the suitable of the owner to repossession of his premises in Nigeria is the idea of statutory tenancy. What this idea means is {that a} tenant whose time period has expired (and who must have moved out of the premises) enjoys the complete safety and backing of the legislation to stay on the premises and can’t be ejected from the premises until a courtroom orders him to vacate the premises. Such a defaulting tenant is entitled to service of statutory notices like another form of tenant. The Supreme Court docket within the case of African Petroleum Ltd. V. Owodunni went so far as holding {that a} statutory tenant(i.e. is one whose time period has expired however who has refused to maneuver out) can sue the owner for trespass to land. Based on the Apex courtroom, such a tenant stands in the identical place as a tenant whose tenancy nonetheless subsists. One wonders if the legislation encourages tenants to be dangerous tenants who violate or dishonour their covenants with landlords.That the owner now stands in a precarious place the place he dangers dropping his funding in his property is subsequently moderately apparent. To some folks, the assertion that the owner is the weaker social gathering and that he suffers critical hardship on the occasion of his tenants sounds preposterous and unfaithful. Nonetheless, we solely have to remind ourselves of the truth that possession (albeit, unique possession) is the very basis upon which landlord and tenant relationships are based to understand the reality and veracity of that assertion. It’s a infamous undeniable fact that the impediments and restrictions imposed by legislation on landlords’ proper to repossess his premises unnecessarily and unjustly delays, frustrates, suspends and postpones the suitable of the owner to possession of his premises.The emasculation of the owner’s energy to repossess his premises has left him on the mercy of the tyranny and fraud of his tenants. It is not uncommon information that tenants now use the legislation as an instrument to perpetuate fraud on their landlords. Emboldened with information of the safety accorded and afforded them by legislation, tenants now recklessly (and typically intentionally) violate and dishonour their covenants with their landlord. It is not uncommon to see tenants who’re in arrears of lease for a number of years refuse to maneuver out of the premises. It’s because they know that they will use the courts to delay and frustrate the owner’s proper to possession.The inefficiency of the judicial system and the lengthy delays skilled in our courts is a superb software of struggle and resistance within the arms of many a tenant. It takes a median interval of 24 months in courtroom for landlord to get well possession of his premises. If the tenant is provided with the ability to delay and frustrate the suitable of the owner to repossess his premises by the authorized and courtroom system and by so doing to elongate his time period, then he’s certainly the grasp of the bargaining desk. As they are saying, he who has gold makes the principles. Within the context of our dialogue, he who’s in possession and decides when and easy methods to relinquish possession makes the principles. That individual is the tenant.This favoritism and one-sided affection of the legislation in the direction of tenants on the detriment/expense of their landlords is a reason for concern in the actual property and development industries in Nigeria. The ugly phenomenon of tenants’ refusal to surrender possession after the expiry of their phrases has triggered and continues to trigger untold hardship on landlords and actual property traders.Based on Oni, “… the rate of default in rent payments amongst tenants in Lagos metropolis is high. In a survey of 120 estate surveyors,12 (representing 10%) stated that tenants usually fall into arrears for up to six months,86 (about 72%) stated that default is between seven and twelve months and twenty two ( about 18 %) were of the opinion that rents are owed for more than twelve months. In other words, the study revealed that 90% of the respondents had experienced default in rent for more than seven months… “Thus, landlords and traders lose billions to tenants who default in fee of lease. The ache of dropping rental revenue attributable to default by tenants to pay lease and to honour different obligations beneath the tenancy settlement is aggravated by the issue of repossessing the premises from dangerous tenants. The legislation forbids resort to extra-judicial means to repossess premises. It prohibits the usage of pressure or another technique of self-help to evict tenants. A landlord who intends to repossess his premises from his tenant should search his treatment from the courtroom and the judicial system the place he faces uncertainty as to the result or length of the method. Even when judgment is ultimately entered in his favour, the owner would have spent an inordinate period of time earlier than judgment is given and should spent extra time in executing the judgment.The impact of this state of affairs is that it discourages funding in the actual property and development sectors of the Nigerian financial system. The shortage of investor confidence in these sectors signifies that fewer properties might be constructed and this isn’t good for the housing sector in Nigeria. The authorized and regulatory bottlenecks and challenges stopping simple and fast of recovering of premises from tenants is clearly a critical funding threat.Nigeria is a nation with a inhabitants of 170 million folks most of whom are in dire want of respectable, inexpensive housing. Based on the World Financial institution Report, Nigeria at the moment has a housing deficit of 17 million homes. A whooping sum of N59.5 trillion is required to bridge this hole in housing wants. With the current state of our legal guidelines and the judicial system with its bias for unscrupulous, irresponsible tenants, there isn’t any means that this housing deficit might be bridged.To say that Nigerian laws on landlord and tenant relations has didn’t stability or harmonize the pursuits and rights of the owner with these of the tenant is to state the plain. For that reason, these legal guidelines have failed to deal with the very downside for which they have been enacted. Relatively, these legal guidelines have created new issues.We agree with the argument of 1 American author who says that “… as long as government control is the only substitute for market control, the results will be arbitrary and unfair. By giving the parties to the landlord-tenant agreement more voice and tenants an equal voice, the government would have lifted itself off the backs of the people and yet be a better enforcer of tenants’ rights… “We agree with submission of this author that the answer to the issue of inequality of bargaining energy between landlord and tenant lies neither in additional authorities regulation nor in a free market system the place there isn’t any regulation in any respect. Relatively, “the solution is to let the parties, not the government, set the terms of the rental agreement while the government sets the outside limits.”We subsequently have to impact a whole overhaul of the present authorized and regulatory regime in Nigeria and exchange it with a system that balances the pursuits and rights of the owner with these of the tenant.