CROSS RIVER – LANDLORD AND TENANT LAW

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CROSS RIVER STATE LAWS

CHAPTER L5

LANDLORD AND TENANT LAW

ARRANGEMENT OF SECTIONS

PART I

Application

SECTION

  1. Relationship of landlord and tenant.
  2. Nature of tenancy.
  3. Subject matter of tenancy.
  4. How tenancy may be created.

PART II

Who may Create a Tenancy

  1. Holder of right of occupancy.
  2. Tenants in general.
  3. Yearly tenants.
  4. A tenant at will.
  5. Tenant at sufferance.
  6. Holders of power of attorney.
  7. Vesting and assignment of powers.
  8. Power to create tenancy in possession or in reversion.
  9. Joint owners.
  10. Infants.
  11. Property owners before mortgage.
  12. Rights of parties to create tenancies of mortgage property.
  13. Agents.

PART III

Who may be Granted a Tenancy

  1. Any person may be a tenant.
  2. Infants.
  3. Joint tenant.
  4. Partnership.
  5. Lunatics.
  6. Enemy.

PART IV

Contract to Create a Tenancy

SECTION

  1. Definitions.
  2. Essential requirements.
  3. Part performance.
  4. Oral rescission.
  5. Registration of contract for a sublease.
  6. Remedies for breach of contract for a sublease.
  7. Conditions implied in a contract for a sublease.
  8. Possession by virtue of contract for a sublease.
  9. Possession by virtue of void sublease.
  10. Contract for sublease implies usual covenants.
  11. Usual covenants.
  12. Essential requirement of a sublease.
  13. Tenancy for three years or less.
  14. Tenancy for more than three years.
  15. Anything of the essence of property sublet passes with it.
  16. Execution of sublease.

PART V

Void and Voidable Tenancies

  1. Tenancy agreement obtained by fraud.
  2. Tenancy for unlawful purpose.
  3. Money paid under void tenancy.
  4. Where purpose may be carried out in legal or illegal manner.
  5. Mistake as to tenant’s identity.
  6. Sublease may be void if altered.
  7. Rectification for fraud, etc.
  8. Rescission for fraud, etc.
  9. Rescission for innocent representation.
  10. Rescission for mistake.

PART VI

Types of Tenancy

  1. Tenancy for a term of years.
  2. Tenancy from year to year.
  3. Yearly tenancy by operation of law.
  4. Tenancy for less than a year.
  5. Tenancy at will defined.

SECTION

  1. How tenancy at will arises.
  2. Express creation of tenancy at will.
  3. Tenancy at will by operation of law.
  4. Consent of landlord essential.
  5. Determination of tenancy at will.
  6. Demand by landlord.
  7. Rights of parties at end of tenancy at will.
  8. Tenancy at sufferance defined.
  9. Position of tenant at sufferance.
  10. Rent defined.
  11. Premium.
  12. Rent payable as due.
  13. Reservation of rent.
  14. Whole tenancy void if any part unlawful.
  15. Commencement of rent.
  16. “Net rent”.
  17. Rent must be reserved to the landlord.
  18. Rent, etc., run despite death of landlord or tenant.
  19. Power to grant at any rent.
  20. Liquidated damages.
  21. When rent becomes due.
  22. When rent may be demanded or recovered.
  23. Payment in advance.
  24. Person to whom rent is payable.
  25. Effect of payment of rent.
  26. Payment by assignee.
  27. Payment by a third party.
  28. Deductions and refunds by mistake of law.
  29. Agreement to reduce rent.
  30. Rent to be paid in lawful currency.
  31. Payment to landlord in person.
  32. Payment of ground rent by tenant.
  33. When rent is apportioned.
  34. Eviction of tenant and apportionment.
  35. Apportionment of rent in respect of time.
  36. Enforcement of apportioned rent.
  37. Creation of privity of contract.
  38. Liability of tenant for rent after quitting possession.
  39. Liability after destruction of property.
  40. Rent suspended when tenant evicted.

SECTION

  1. No rent where tenancy for illegal purpose.

PART VII

Recovery of Rent by Action

  1. Who may be parties.
  2. Action by or against representatives or assigns.
  3. Joint and several liability for rent.
  4. Personal representatives of landlord and tenant.
  5. Tenant’s defences.
  6. Use of occupation implies promise to pay.
  7. Persons liable to pay for use and occupation.
  8. Who is entitled to payment for use and occupation.
  9. Amount payable for use or occupation.
  10. Action for use and occupation.
  11. Where reversion is surrendered.
  12. Apportionment on condition on severance.
  13. Rent and benefit of sublessee’s covenants to run with the reversion.
  14. Obligation of landlord’s covenants to run with reversion under Part VII.

PART VIII

Licences

  1. Effect of licences granted to sublessees.
  2. No fine to be exacted for licence.

PART IX

Miscellaneous

  1. Sublessee to give notice of ejectment to sublessor.
  2. Restriction on and relief against forfeiture of subleases and sub-underleases.
  3. Waiver of covenant in a sublease.
  4. Abolition of interesse termini, and as to reversionary subleases and subleases for lives.
  5. Surrender of a sublease without prejudice to sub-underlease with a view to the grant of a new sublease.
  6. Provision as to attornment by tenants.
  7. Sublease invalidated by reason of non-compliance with terms of powers under which they are granted.

PART X

Rights and Liabilities on Determination of Tenancy

  1. Duty of tenant.
  2. Duty of tenant to eject subtenant.
  3. Tenant’s liability by holding over.

SECTION

  1. Interpretation.
  2. Short title.

 

 

CHAPTER L5

LANDLORD AND TENANT LAW

BE IT ENACTED by the Cross River State House of Assembly as follows—

(20th December, 1991)

[Commencement]

PART I

Application

  1. Relationship of landlord and tenant

(1)     This part of this Law shall apply to all tenancies, other than tenancies created under customary law, in respect of property situated in the State.

(2)     For the purpose of this section, a tenancy is created under customary law where the right or other interest of the landlord in the property concerned is founded upon customary law and there is no intention, express or implied, on the part of the parties that the tenancy shall be governed otherwise than by customary law.

(3)     In deciding whether or not the parties to a tenancy intend that such tenancy shall be governed otherwise than by customary law, regard shall be had to all the circumstances of the transaction including the parties to it, the nature of the property which is the subject matter of the tenancy, the manner in which the tenancy is created, and, where it is created in writing, the form of words used.

(4)     For avoidance of doubt, this Law shall apply to every tenancy by which a building or part thereof is let to any person for dwelling purposes, whether or not any part of such building is also used for other purposes than dwelling.

(5)     This Law shall, subject to the Land Use Act and any other written law in force in the State, apply to the State.

(6)     This Law shall, except where otherwise expressly provided, apply to tenancies created after the commencement of this Law.

  1. Nature of tenancy

(1)     Subject to this Law or any other written law in force in the State, there shall exist a relationship of landlord and tenant where an interest in property is created in favour of a person out of an interest vested in another person in the same property.

(2)     An interest created under subsection (1) of this section is called “tenancy”; the person out of whose interest a tenancy is created is called “landlord”; the person in whose favour a tenancy is created is called “tenant”; and the duration of a tenancy is called “term”.

(3)     Where a tenancy is created by deed out of a right of occupancy for a determinate term, with or without an option for renewal, it is called “sublease” or “demise”; the person who creates it is called a “sublessor” and the person in whose favour it is created is called a “sublessee” or “under-lessee”; also the document creating it is called a “sublease” or an “underlease”.

(4)     Where a tenancy is created by deed out of an existing sublease and is for a determinate term with or without an option for renewal, it is called a “sub-underlease” or “sub-demise”; and the person in whose favour it is created is called the “sub-underlessee”; also the document creating it is called a “sub-underlease”.

  1. Subject matter of tenancy

(1)     Subject to any written law in force in the State—

(a)     a tenancy may be created of any land or building thereof, and such tenancy shall carry with it a right of exclusive possession of the thing let;

(b)     a tenancy may be created of an interest in land or building so that the tenant thereby acquires a right to some specified use of or benefit from or privilege incident to such land or building without acquiring a right of exclusive possession of the land or building concerned.

(2)     For the purpose of this section—

“land” means the surface of the earth and all successive strata below it but does not include minerals;

“building” means any structure, attached to land or any part of such structure, whether the division is vertical, horizontal or in any other way and “tenancy” includes a subtenancy.

  1. How tenancy may be created

(1)     A tenancy may be created by act of parties or may arise by operation of law.

(2)     Subject to this Law and any other written law now or hereafter in force in the State, a tenancy may be created orally, or in writing under hand, or by deed.

PART II

Who may Create a Tenancy

  1. Holder of right of occupancy

The holder of a right of occupancy may, subject to this Law and any other law in force in the State, create a tenancy thereof for any term and subject to any conditions and covenants he thinks fit.

  1. Tenants in general

(1)     In the absence of an agreement to the contrary, and subject to the landlord’s consent being first obtained, a tenant other than a tenant at will or at sufferance may, out of his tenancy and as an incident thereto create a tenancy of lesser duration in favour of a third party. A tenancy so created is called a sub-tenancy.

(2)     Where a tenant purports to create in favour of a third party a sub-tenancy which is of the same duration as the residue of his own tenancy, he shall be deemed to assign his tenancy to such third party who shall thereafter be a tenant of the assignor’s landlord.

  1. Yearly tenants

(1)     Notwithstanding subsection (2) of the last foregoing section but subject to any contrary agreement in his tenancy and the landlord’s consent being first obtained, a tenant who holds a yearly tenancy may create in the same property the subject matter of his own tenancy—

(a)     by deed, a tenancy of one or more years certain; or

(b)     by deed or otherwise, a yearly tenancy.

(2)     A tenancy created under subsection (1) of this section shall be deemed to be a sub-tenancy and shall co-exist with the yearly tenancy of the person creating it.

  1. (1) A person occupying property as a tenant at will cannot create any sub-tenancy out of such tenancy and any sub-tenancy purported to be created by him shall be void as regards his landlord.

(2)     Where a person occupying property as a tenant at will purports to create a sub-tenancy out of such tenancy and gives actual possession to the purported subtenant, he shall thereafter be estopped from denying the existence of that sub-tenancy which shall be deemed to exist as between him and the purported subtenant; but this shall be without prejudice to the right of the original landlord to recover the property.

  1. Tenant at sufferance

The provisions of the last foregoing section shall apply mutatis mutandis to a tenant at sufferance.

  1. Holders of power of attorney

A beneficiary owner of property or interest therein may by a power of attorney, will or otherwise confer upon another person the right to create a tenancy of such property or interest in favour of another person—

(a)     a holder of a power given under the last foregoing subsection may, within the limits authorised and subject to the conditions or other stipulations imposed by such power create a tenancy of property the subject matter of such power: Provided that where a person holding a power creates a tenancy in excess of the term authorised by the power, such tenancy shall if it would otherwise be valid, be valid for the authorised period and void as to the excess period;

(b)     a holder of a power may create a tenancy for a term which is less than that authorized by the power, and may create a term for the full authorised period determinable by notice or otherwise;

(c)     where under a power a tenancy is created with a covenant to renew at the end of the term so created such covenant shall, in the absence of a contrary provision in the power itself, be enforceable against the person creating the tenancy or the reversioner if it stipulates that renewal shall be at the best rent obtained at the time of renewal.

  1. Vesting and assignment of powers

Where power to create tenancies is given to a donee and he assigns such power in the absence of a contrary intention in the document creating it, it—

(a)     may be exercised by the donee as often as it shall be necessary to do so; and (b) shall run with the property the subject matter of such power; and

(c)     shall vest in the donee’s personal representative or assignee and every successive personal representative or assignee of the latter.

  1. Power to create tenancy in possession or in reversion

(1)     A general power given to a donee to create tenancies without saying whether tenancies in reversion as well as those in possession may be created authorises the donee to create tenancies in possession only.

(2)     Where a donee is given power expressly to create tenancies in possession and part of the property the subject matter of the power is in possession while part is in reversion, the donee may immediately create a tenancy in possession both of the part in possession and of the part in reversion.

  1. Joint owners

(1)     Where a property or interest therein is owned by two or more persons jointly, a tenancy of such property or interest may be created if, but only if, it is created or concurred to by all the joint owners: Provided however that where one of several joint owners is an infant or is otherwise incapable of acting for himself, his parent, guardian or, failing these, the High Court may act in his behalf in creating or concurring to the creation of a tenancy.

(2)     Nothing in the foregoing subsection shall affect the provisions of any written law now or hereafter in force in the State regarding trusts for sale and powers of trustees for sale.

  1. Infants

An infant cannot create a tenancy but his parent or guardian or failing these the High Court may do so on his behalf.

  1. Property owners before mortgage

Where the owner of property or interest therein creates a tenancy of such property or interest in favour of one person and thereafter mortgages the same to another person then in absence of agreement to the contrary in the mortgage instrument—

(a)     such a tenancy shall be and remain valid against the mortgage;

(b)     the mortgagor shall have a right to demand and receive rents from the tenant and a receipt issued by him shall be effective discharge of the tenant’s duty to pay rent in respect of the period covered by such receipt;

(c)     the mortgagee may at any time during the continuance of the mortgage terminate the mortgagor’s right to receive such rents by giving notice of the mortgage to the tenant and demanding that rents to be thereafter paid to him;

(d)     on giving such notice the mortgagee becomes entitled to all subsequent rents as well as all arrears of rent due and unpaid in respect of the tenancy since the commencement of the mortgage and may recover the same from the tenant in an action for use and occupation of the property;

(e)     where the tenancy commenced before the mortgagor acquired the property concerned at the same time as the execution of the mortgage deed, then the title or other interest of the mortgagor shall be deemed for all purposes to commence prior to the commencement of the mortgage term;

(f)      if by the terms of the mortgage deed the mortgagor is prohibited from creating tenancies of the property concerned, any tenancy he created previously shall if at the time the mortgage is executed the tenant has not gone into possession, become void as against the mortgage.

  1. Rights of parties to create tenancies of mortgage property.

(1)     The rights of parties to a mortgage to create tenancies of the mortgage property after the execution of such mortgage shall be governed by any written law now or hereafter in force in the State concerning mortgages or where such law is validly excluded by the parties by the express intentions of such parties.

(2)     Where a mortgagor lawfully creates or agrees to create a tenancy of the mortgage property after the mortgage has been executed the person in whose favour such a tenancy is or is about to be created has a right to redeem the mortgage.

(3)     Subject to any law in force in the State and in the absence of an agreement to the contrary—

(a)     where a mortgagor in possession creates a tenancy of the mortgage property after the mortgage has been executed, the tenant shall be entitled to pay rents to the mortgagor and otherwise regard him as landlord whether or not he has notice of the existing mortgage and shall be estopped from denying the mortgagor’s right to create such tenancy;

(b)     where a tenancy is created as in paragraph (a) of this subsection the mortgagee may on the mortgage debt becoming due and unpaid give notice of the mortgage to the tenant and demand that thereafter all rents and profits shall be paid to him or at his discretion;

(c)     on a mortgagee giving notice to the tenant under the last foregoing paragraph, and not before, he shall become for all purposes the landlord of such tenant and shall therefore be entitled to all rights and remedies and subject to all duties and liabilities of a landlord in law and equity vis-a-vis such tenant;

(d)     for the purpose of ascertaining the appropriate period of notice to quit when a mortgagee has become a landlord under the last foregoing paragraph, the tenancy concerned shall be deemed to have commenced at the same time as the tenancy granted by the mortgagor;

(e)     where a mortgagor, before or after the execution of a mortgage lets a house or other premises with furniture he shall after the mortgagee has given notice to the tenants under paragraph (b) be entitled to a reasonable rent for such furniture and may recover it by action out of any rents due to be paid by the tenant;

(f)      who fore-loses shall have no right to create a tenancy of the mortgage property unless and until he shall have foreclosed the mortgage.

  1. Agents

(1)     An agent may, if and to the extent he is duly authorised by his principal, make an agreement to create a tenancy or himself create a tenancy in the name and on behalf of his principal. An agreement so made or tenancy so created shall bind the principal. Whether or not a person is an agent or an agent who is duly authorised are questions of fact to be determined by evidence having regard to all relevant circumstances.

(2)     For the purposes of this section, an agent has no power to create a tenancy by deed unless he was appointed agent by deed.

(3)     A principal may adopt and ratify a tenancy or an agreement to create a tenancy made by his agent without any or sufficient authority or made in the name of the agent alone.

(4)     A tenancy or agreement adopted and ratified under subsection (3) shall bind both the principal and the tenant or intended tenant; also, where an agent without sufficient authority creates a tenancy by deed, adoption and ratification may be done by the principal delivering the deed to the tenant or doing any act which is tantamount to redelivery; and in other cases, adoption and ratification may be done by the principal giving a clear indication by word or action that he approves of the tenancy or agreement so made.

(5)     The law from time to time in force in the State regarding warranties and representations by agents shall apply to transactions carried out by an agent under this section.

PART III

Who may be Granted a Tenancy

  1. Any person may be a tenant

Subject to this Law and any other written law in force in the State any person may be granted a tenancy of any property situated in the State.

  1. Infants

(1)     An infant shall be incapable of holding a legal interest under a deed of sublease or sub-underlease.

(2)     Where a deed of sublease or sub-underlease is executed by a sublessor in favour of an infant for his own benefit, such instrument shall not operate to transfer any legal interest to the infant but shall operate as an agreement for valuable consideration to execute a sublease or sub-underlease as the case may be in the name of one or more adults or trust for the infant, and the sub-lessor or sub-underlessor as the case may be shall meanwhile hold the legal interest intended to be created in trust for the infant: Provided that nothing in the foregoing subsections of this section shall affect any beneficial interest in the property the subject matter of the sublease or sub-underlease intended to be thereby created for the infant.

(3)     Where a sublease or sub-underlease is executed in favour of an infant jointly with another person of full age such instrument shall operate to vest any legal interest intended to be transferred thereby to that other person on trust for himself and the infant but not so as to sever the joint tenancy in any beneficial interest arising from such transaction.

(4)     Where a sublease or sub-underlease is executed in favour of an infant jointly with another person of full age on any trust, such instrument shall be read as if the name of the infant were omitted but without prejudice to any beneficial interest in the property the subject matter of sublease or sub-underlease intended to be thereby provided for the infant.

  1. Joint tenant

(1)     Property may be left to two or more persons as joint tenants.

(2)     Where one joint tenant dies the survivor shall become entitled to the residue of such tenancy to the exclusion of the personal representatives of the deceased joint tenant.

(3)     Where under the terms of a joint tenancy, the liability of the tenants is both joint and several, the personal representatives of the deceased joint tenant shall not be liable at the suit of any person for any breach of covenant or other claim arising after the death of that joint tenant.

(4)     Where under the terms of a joint tenancy, the liability of the tenants is merely joint but not also several, liability of a deceased joint tenant shall continue for the duration of such tenancy and shall pass to his personal representatives,

(5)     Subject to this section, one joint tenant is entitled to contribution from the other in respect of claims or liability with regard to their joint tenancy.

  1. Partnership

Where property is let to a partnership all those partners who are parties to the tenancy transaction shall hold the property as joint tenants in trust for the partnership, and the beneficial interest in the property shall belong to all the partners jointly.

  1. Lunatics

A person of unsound mind may be granted a tenancy, but he shall not be sued directly or indirectly upon a tenancy or agreement for a tenancy unless the same is necessary for him.

  1. Enemy

An enemy alien shall not be capable of taking a tenancy:

Provided that nothing in this section shall affect the validity of or liability for rents arising under a tenancy which was created before a tenant became an enemy alien.

PART IV

Contract to Create a Tenancy

  1. Definitions

(1)     A contract to create a tenancy is a legally enforceable agreement whereby one party agrees to create a tenancy in favour of the other and that other agrees to accept such tenancy.

(2)     Where a contract is to create a sublease, it is called a contract for a sublease.

  1. Essential requirements

(1)     No contract for a sublease may be enforceable in any court of law unless such contract or some memorandum or note thereof is in writing and signed by the party to be charged or his agent and contains all essential particulars.

(2)     A contract for a sublease shall be deemed to contain all essential particulars where such contract or a memorandum or note of it contains—

(a)     the name of the sublessor or his agent;

(b)     the name of the sublessee or his agent;

(c)     the name or other sufficient description of the property to be sublet;

(d)     the term to be created; and

(e)     the time when the sublease is to commence, or sufficient information from which such time can be determined; and

(f)      the rent to be paid or the manner in which such rent is to be determined.

(3)     A contract for a sublease or a memorandum or note of it may be contained in one document, or in any number of documents provided these have sufficient reference to the other and, when read together, show a clear intention by the parties to make such a contract.

(4)     Nothing in this section shall prevent parties to a contract for a sublease from including other lawful terms and covenants in such contract.

  1. Part performance

Notwithstanding the provisions of subsection (1) of the last foregoing section, where a contract for a sublease or a memorandum or note of it is in writing and is duly signed but does not contain all the essential particulars required by subsection (2) of the said section, such contract may nevertheless be enforced if by virtue of it the intended sublessee has made payment to the intended sublessor by way of rent or premium or has taken possession of all or part of the property to be sublet.

  1. Oral rescission

A contract for a sublease may be wholly, but not partially, rescinded by a subsequent contract which is not in writing, and when so rescinded shall cease to be enforceable in any court of law.

  1. Registration of contract for a sublease

(1)     A contract for a sublease may be registered under any written law in force in the State requiring or permitting registration of instruments affecting land or prescribed by the law under which it is done.

(2)     This section shall apply to any contract for assignment or for renewal of a sublease or sub-underlease.

  1. Remedies for breach of contract for a sublease

(1)     Where a party to a contract for a sublease or sub-underlease fails to perform his obligations under it, he shall, provided he signed the contract or a memorandum or note of it, be or for what may be compelled to perform such obligations.

(2)     Subject to any law in force in the State regarding damages and specific performance, a party may be ordered both to perform his obligations under a contract for a sublease and to pay damages for loss caused by his delay in performing such obligations.

(3)     Where a party is ordered to perform his obligations under a contract for a sublease and he fails to do so within a reasonable time, the other party may ask for and obtain an order rescinding the contract; and in such a case the party who thus obtains rescission shall not be awarded damages as well.

(4)     An intending tenant who has made advance payment of rent or premium by virtue of a contract for a sublease shall have a right to recover such payment if the contract is broken; but this shall not affect the right of the other party to make any claim, counterclaim or set-off to which he may be otherwise entitled.

  1. Conditions implied in a contract for a sublease

(1)     Where parties make a contract for a sublease, the intended landlord shall be deemed to agree to create a valid sublease, and the intended tenant shall be deemed to agree to accept such sublease.

(2)     A party who makes a contract to create a sublease  shall be deemed to warrant that he has title to create of that warranty if in fact he does not have such title.

(3)     Subject to any express agreement to the contrary, a contract for a sublease shall be deemed to contain an agreement by the intending landlord to create and by the intending tenant to accept a sublease with vacant possession of the property concerned.

  1. Possession by virtue of contract for a sublease

Where an intending tenant under a contract for a sublease by virtue of such contract goes into possession of the property concerned, he shall if specific performance of such contract would lawfully be ordered, be deemed to be a tenant under the same terms as if the sublease had been duly created.

  1. Possession by virtue of void sublease

A document which is duly executed as a sublease and which would be valid if made by deed but is made indeed and shall nevertheless be deemed to contain a legally enforceable contract to create a sublease on the terms contained in it, and specific performance of such contract may be ordered.

  1. Contract for sublease implies usual covenants

(1)     Where parties make a contract for a sublease they shall be deemed to agree, subject to express provisions to the contrary, that the sublease to be created shall contain covenants and that these shall be covenants which are usual for the type of sublease contemplated and in the area where the property concerned is situated, and that such sublease shall not be subject to any existing covenants which are not usual as aforesaid.

(2)     The question of what covenants are usual and whether a particular covenant is usual shall be questions of fact to be determined with regard to all the circumstances of the case including the practice of legal practitioners, the nature of the sublease to be created, the character of the property concerned and the place in which it is situated, the term to be created and any express provisions made in the contract for the sublease.

  1. Usual covenants

(1)     Subject to this law and any express agreement to the contrary, the following covenants shall be usual covenants—

(a)     a covenant by the tenant to pay rent, and a proviso for re-entry for non-payment of rent;

(b)     a covenant by the tenant to keep and deliver up the property in good repair but this shall not apply to a monthly tenancy;

(c)     a covenant by the tenant to pay taxes except such as are usually payable by landlords but this shall not apply to monthly tenancies;

(d)     a covenant by the tenant to use the property only for the purpose for which the sublease is created; and

(e)     a covenant by the landlord that the tenant paying his rents and performing and observing conditions and covenants to be performed or observed by him under the sublease, shall enjoy quiet possession of the property.

(2)     A tenant holding for life or lives or for years, or from year to the year or for any other period, by deed or otherwise, shall be liable for natural waste unless a contrary intention shall appear from the dead or other instrument in writing which creates the tenancy.

  1. Essential requirement of a sublease

(1)     A sublease shall satisfy the following requirements, otherwise it shall be void—

(a)     it shall contain the name of the sublessor who shall be a person capable of creating such sublease;

(b)     it shall contain the name of the sublessee who shall be a person capable of taking such sublease;

(c)     it shall contain the name of or other description sufficient to identify the property sublet which shall be property capable of being thus sublet;

(d)     it shall contain an express intention on the part of the sublessor to sublet, and on the part of the sublessee to take a sublease of the property concerned;

(e)     the term granted shall be sufficiently defined to be certain or ascertainable as regards its commencement and duration; and

(f)      where any law in force in the State at the time of its creation requires that a sublease of that type shall be by deed or executed in a particular manner, it shall be by deed or executed in that particular manner, as the case may be.

(2)     A sublease may be created to commence on the occurrence of a contingent event.

(3)     A thing shall not be regarded as omitted or uncertain in a sublease if the sublease contains sufficient facts or materials from which it can reasonably be supplied or ascertained.

  1. Tenancy for three years or less

Tenancy for a term of three years or less at the best rent that can reasonably be obtained without taking a premium may, at the option of the parties, be created in writing or orally, whether or not it contains an agreement for renewal.

  1. Tenancy for more than three years

A tenancy for a term of more than three years from the date of its creation shall be created by deed, and if not so created shall be void; and it is immaterial whether or not such tenancy may, under its provision, terminate within three years of its creation.

  1. Anything of the essence of property sublet passes with it

(1)     Where a tenancy is created, all things which are of the essence, being essential to the reasonable use and enjoyment of the property the subject matter of the tenancy shall be deemed to form part of such property and to be sublet with it, even if it is not actually attached to it at the time the tenancy is created.

(2)     Notwithstanding the generality of the foregoing subsection if the property the subject matter of the tenancy is a building or part of a building—

(a)     all doors and windows with their respective components shall be deemed to be in their proper places and to pass with the property demised to the tenant even if at the time the tenancy is created they are not actually in place; and

(b)     all passages, staircases, conveniences, forecourts, grounds and other things which such property shall be deemed to form part of it and to pass with it to the tenant even if at the time the tenancy is created such things or some of them are not actually being used with it.

(3)     Where two or more tenants occupy different parts of a building and it is not expressed or is otherwise not possible to determine which of the things mentioned in paragraph (b) of subsection (2) attach to what parts of the building, the various tenants shall have equal right to the use and enjoyment of such things.

  1. Execution of sublease

(1)     Where a sublease is created by deed it shall be executed, sealed and delivered by the respective parties to it: Provided that where a party is illiterate or otherwise cannot sign his name, such party may execute by placing his mark or thumb impression on the sublease: Provided also that a corporation shall be deemed to execute a sublease if its common seal is affixed thereto in the presence of, and is attested by, an officer having authority so to do.

(2)     A sublease created by deed may be executed, sealed and delivered on behalf of a party by an agent by deed to do so provided there is a clear indication on the instrument that the agent is acting on behalf of a named principal.

(3)     Subject to this Law and to any other law in force in the State regarding part performance, no person shall be liable under a sublease unless it is signed by him or on his behalf by a duly appointed agent.

PART V

Void and Voidable Tenancies

  1. Tenancy agreement obtained by fraud

(1)     An agreement to create a tenancy shall be void if the tenant—

(a)     procures it by fraud; or

(b)     intends to use the property concerned for a purpose which is unlawful or against public policy.

(2)     Where a party makes an agreement for a tenancy with another by representing that the property concerned will be used for a lawful purpose and eventually uses it for a purpose which is unlawful or against public policy, he shall be deemed to procure the agreement by fraud, and the other party shall be entitled to have the tenancy set aside.

(3)     The provisions of this section shall apply to any agreement to assign a sublease.

  1. Tenancy for unlawful purpose

(1)     Where property the subject matter of a tenancy is, to the knowledge of the parties to such tenancy, to be used for a purpose that is unlawful or against public policy, such tenancy, whether it is created orally or in writing, shall be void.

(2)     Where property is let to a tenant who, unknown to the landlord, intends to use it for a purpose that is unlawful or against public policy, the tenancy so created, whether it is oral or in writing, shall be void ab initio: Provided that where a tenant uses property for such purpose from the time he enters into possession, this shall be conclusive evidence that at the time the tenancy is created he intends to use the property concerned for such purpose.

(3)     Where property is let for a lawful purpose but is subsequently put to a use that is unlawful or against public policy, the tenancy so created, whether it is oral or in writing, shall be void from the moment the property is put into such other use but without prejudice to any right of action existing against the tenant at the time the contract was valid.

(4)     The provisions of this section shall apply to any assignment of a tenancy: Provided that in the case of subsection (3) the right to recover possession of the property concerned shall vest in the landlord, that is, the party who let the property to the assignor, and not in the assignor himself.

  1. Money paid under void tenancy

Money or other payments made in connection with a tenancy which is void under the two foregoing sections shall not be recoverable in any court of law.

  1. Where purpose may be carried out in legal or illegal manner

Where property is let for a purpose which may be carried out in either a legal or illegal manner, the landlord shall be entitled in the absence of any information to the contrary, to assume that the purpose shall be carried out in a legal manner and the tenancy shall be valid: Provided that if the purpose of the tenancy is in fact carried out in an illegal manner and the landlord knows or ought reasonably to know that it is being so carried out, the provisions of the last three foregoing sections shall apply.

  1. Mistake as to tenant’s identity

Where a tenancy is created and the landlord is mistaken as to the identity of the tenant and the circumstances are such that the person of such tenant is an important factor, such tenancy shall be voidable at the instance of the landlord.

  1. Sublease may be void if altered

Where a tenancy is in writing, whether or not under seal, any alteration of it in material particular after it has been executed shall make it void if such alteration is not agreed upon by the parties to the tenancy or their authorised agents.

  1. Rescission for fraud, etc.

(1)     Where the terms of a tenancy as written down and executed or signed materially differ from the terms which the parties intended, and such difference is due to a mistake of fact by both parties to the tenancy, the tenancy may be altered so as to give effect to the true intention of the parties and oral evidence of such intention shall be admissible.

(2)     A clerical error occurring in a written tenancy may be corrected and effect given to the true intentions of the parties.

  1. Rescission for fraud, etc.

A tenancy which is procured by fraud or by concealment or misrepresentation (not being innocent misrepresentation) of a material fact by one of the parties may, subject to any law now or hereafter in force in the State, be set aside at the instance of the other party.

  1. Rescission for innocent representation

(1)     Where a party to an agreement for a sublease is induced to make such agreement by a misrepresentation made innocently by the other party, the party so induced may rescind such agreement.

(2)     A sublease shall not, after execution, be rescinded merely on the ground that it is induced by innocent misrepresentation.

  1. Rescission for mistake

A tenancy may be set aside if both parties to it are induced to create it by a mistake as to a fact, but this section shall not apply where the mistake in question is one as to law.

PART VI

Types of Tenancy

  1. Tenancy for a term of years

(1)     A tenancy for a term of years may be created for any period of time short of perpetuity.

(2)     No tenancy for a term of years shall be valid unless it is certain, that is, unless it has a certain beginning and a certain ending.

(3)     A tenancy for a term of years may be created to take effect immediately, from a past or a future date or on the occurrence of a future event.

(4)     No tenancy which is created to take effect at a future date or on the occurrence of a future event shall be valid unless created by deed.

(5)     A tenancy for a term of years may be created to subsist and run concurrently with an existing tenancy of the same property, in which case it shall operate as an assignment of the reversion during such time as the two tenancies run concurrently.

  1. Tenancy from year to year

(1)     A tenancy from year to year is a tenancy created for a term of one year with an agreement, express or implied, that unless it is determined by notice at the end of that year it will subsist for another year, and if not determined by notice at the end of that other year, it will subsist for another year and so on.

(2)     A tenancy from year to year may be created by express grant or may arise by implication or by operation of law.

(3)     Subject to an express agreement to the contrary a tenancy from year to year may commence on any day of the year, whether or not such a day corresponds to the beginning of any of the usual four quarters of the year.

(4)     A tenancy from year to year shall not be affected by the death of either the landlord or the tenant.

  1. Yearly tenancy by operation of law

(1)     Subject to this Law or any other law now or hereafter in force in the State, and in the absence of any agreement to the contrary—

(a)     where a tenancy is created in writing and the term for which it is to run is not expressed but the rent payable is expressed as an annual rent, such tenancy shall be deemed to be a tenancy from year to year; and it shall be immaterial whether the rent is also expressed to be payable monthly or at any other intervals;

(b)     where a tenancy is created orally and the term for which it is to run is not stated but the rent payable is stated as annual rent or is actually paid as an annual rent such tenancy shall be deemed to be a yearly tenancy;

(c)     where a tenant for a term of one year or more holds over and pays rent at the rate reserved under the expired tenancy he shall be deemed to be a tenant from year to year on the same terms as the expired tenancy in so far as such terms are applicable to an are not inconsistent with a tenancy from year to year;

(d)     where a person is let into possession of a property under an agreement for a sublease and pays rent for a year at a time, or if the sublease agreed to be created reserved an annual rent and that person pays any part of it, a tenancy from year to year shall be deemed to be created between the parties; and such tenancy shall be on the terms of the intended lease so far as such terms are applicable to and are not inconsistent with a tenancy from year to year.

(2)     The provisions of the last foregoing paragraph shall apply where a person is let into possession of a void sublease and pays rent for a year at a time.

(3)     Where a tenant at will or a tenant at sufferance pays rent for one year at a time, he shall be deemed to be a tenant from year to year at that rent; and this provision shall also apply where such a tenant agrees expressly with the landlord to pay a rent expressed as annual rent whether or not such rent is also expressed to be payable by monthly or other periodic installments.

  1. Tenancy for less than a year

(1)     Subject to this Law or any other law for the time being in force in the State, where a tenancy of a building or part of a building is created and the terms for which it is to run are not stated but the rent to be paid is stated as quarterly, monthly or weekly rent and is actually paid as a quarterly, monthly or weekly rent, the tenancy so created shall be deemed to be a quarterly, monthly or weekly tenancy, as the case may be.

(2)     Where a person is let into possession of a building or part of a building by the owner and it is agreed between them that the person given possession will pay a quarterly, monthly or weekly tenancy, as the case may be, a tenancy shall be presumed to be thereby created; and this provision shall also apply where a tenant at will or at sufferance agrees with the landlord to pay a quarterly, monthly or weekly rent as the case may be: Provided that nothing in this subsection shall prevent a party from showing that there was no intention to create any tenancy at all but to grant a licence or lodging accommodation.

(3)     Where a tenant for any term holds over after the expiration of his tenancy and agrees with the landlord to pay or actually pays, rent for a quarter, month or week he shall be deemed to be a quarterly, monthly or weekly tenant as the case may be on the same terms and conditions as the expired tenancy in so far as these are applicable to and are not inconsistent with a quarterly, monthly or weekly tenancy as the case may be.

  1. Tenancy at will defined

A tenant at will is a person who is in lawful possession of another person’s property and whose possession of such property is determinable at the pleasure of either party. The interest which such a possessor has in that property is called tenancy at will.

  1. How tenancy at will arises

A tenancy at will may be crated by the express agreement or stipulation of the parties to it or may arise by operation of law.

  1. Express creation of tenancy at will

A tenancy at will shall be deemed to be created where the owner of property gives possession of it to another person and such possession is expressed to be determinable at the pleasure of either or both of the parties whether or not any rent is agreed to be payable.

  1. Tenancy at will by operation of law

A tenancy at will shall, subject to this Law and any other law now or hereafter in force in the State and in the absence of circumstances which clearly negative an intention to create a tenancy, arise by operation of law in any of the following circumstances—

(a)     where one person is in possession of the property of another person with his consent but there are no agreed terms or condition under which such possession is held;

(b)     where one person let property to another and no certain or determinate interest is expressly limited;

(c)     where a person lets a building or flat to another person and reserves the right to use a specific room in such house or flat when he pleases, in which case, the person to whom the house or flat is so let shall be a tenant at will in respect of the room with regard to which such reservation is made;

(d)     where a person is in possession of a right of occupying by virtue of a transaction which is not in writing, or being in writing is not under seal, he shall be a tenant at will with regard to such right;

(e)     where a person is in possession of property by virtue of an agreement or a sublease, he shall, until he has made his first payment of rent under the agreement, be a tenant at will of such property;

(f)      where a tenant for any term continues in possession with the consent of the landlord after the expiration of his term he shall, in the absence of payment of any rent, be a tenant at will of the property concerned, holding under such of the terms of the expired tenancy as are not inconsistent with a tenancy at will;

(g)     where a person is given possession of property pending a treaty to purchaser it he shall be a tenant at will of such property;

(h)     where one person holds property as a tenant from year to year and another person holds the same property or part of it as his subtenant, then if the yearly tenancy is merged with the right of occupancy of such property, the subtenant shall become a tenant at will in respect of the property or that part of it in respect of which he was a subtenant;

(i)      where a person takes possession of property by virtue of a void sublease, he shall, until he pays rent, be a tenant at will under the terms of the expired sublease in all respects except the duration of the tenancy;

(j)      where an official of a body corporate which is in possession of property by virtue of his being such official and is later removed from or otherwise ceases to hold such office he shall become a tenant at will of that property.

  1. Consent of landlord essential

Nothing in the foregoing section shall be construed to give rise to a tenancy at will unless the landlord consented or can reasonably be presumed to have consented to the tenant occupying the property concerned as a tenant.

  1. Determination of tenancy at will

A tenancy at will shall terminate in any of the following circumstances—

(a)     when the landlord or the tenant dies: Provided that where a tenancy at will is created by joint owners or in favour of joint tenants, the death of any of the joint owners or of the tenants shall not affect the tenancy as long as there are survivors on both sides;

(b)     on demand for possession made by the landlord;

(c)     on notice of intention to quit given by the tenant;

(d)     by any act of ownership or possession exercised by the landlord which is inconsistent with the tenant’s continued possession of the property concerned;

(e)     by alienation by the landlord of the reversion or of the property itself, by mortgage or otherwise, with notice thereof to the tenant;

(f)      by the tenant transferring or attempting to transfer his interest in the property concerned to another person, or otherwise doing an act inconsistent with a tenancy at will: Provided that the landlord shall not be prejudicially affected by any alienation or attempted alienation unless he is given notice of it;

(g)     by the tenant committing waste of the property concerned;

(h)     by the tenant going out of possession, with or without notice to the landlord;

(i)      by the landlord creating a tenancy of the property concerned in favour of another person.

  1. Demand by landlord

(1)     Where the landlord stipulates in his demand the time when a tenancy at will is to cease such tenancy shall cease at the time stipulated, but where no time is stipulated such tenancy shall terminate on demand.

(2)     A tenant at will shall not be entitled to reasonable or any period of notice to quit, nor shall be obliged to give a reasonable or any period of notice of his intention to quit.

  1. Rights of parties at end of tenancy at will

(1)     Where a tenant at will has crops on land the subject matter of the tenancy or on land used in connection with such land, he shall be entitled to a reasonable time after the determination of his tenancy within which he may enter and reap his crops.

(2)     Where a tenancy at will is determined by the landlord, the tenant shall be entitled to a reasonable time within which he may enter and remove his property.

(3)     Where a tenant at will pays rent on a monthly, quarterly, half-yearly or yearly basis and determines the tenancy after a new month, quarter, half-year or year, as the case may be, has commenced, he shall nevertheless be liable to pay rent for such month, quarter, half-year or year: Provided that nothing in this subsection shall be construed to make a tenant at will liable to pay any rent where the tenancy is determined by the landlord.

  1. Tenancy at sufferance defined

A tenant at sufferance is a person who enters into possession of property by virtue of a lawful title and wrongfully continues in possession without the assent or dissent of the person next entitled to such property or reversion, as the case may be, and the interest which such possessor has in that property is called tenancy at sufferance.

  1. Position of tenant at sufferance

(1)     A tenant at sufferance shall be liable for ejectment at the suit of the landlord whether or not the landlord has made any demand for possession: Provided that nothing in this subsection shall be construed to prevent such a tenant from maintaining an action for assault and battery if he is forcibly ejected.

(2)     A tenant at sufferance has no transferable interest in the property the subject matter of his tenancy.

  1. Rent defined

Rent is a certain profit issuing at regular periods and paid for the use or occupation of property in money or money’s worth reserved or issuing out of or charged upon property, but does not include mortgage interest.

  1. Premium

(1)     A premium is a sum paid by a tenant to a landlord for the granting or renewal of a sublease and independently of any rent payable, such payment being made as one lump sum or by installments; and a fine has the same meaning.

(2)     Where a premium is payable by installments, the obligation to complete payment of it is not affected by the determination of the tenancy itself while the installments are still running.

  1. Rent payable as due

Subject to any written law now or hereafter in force in the State, rent shall be recoverable by court action as soon as it becomes due according to the terms of the tenancy.

  1. Reservation of rent

(1)     Rent may be reserved as part of a transaction creating a tenancy, but no rent shall be validly reserved unless it is certain, or ascertainable, as to its amount and the time when it is payable.

(2)     Rent may be reserved as to commence at any time before or after the tenant goes or is due to go into possession.

  1. Whole tenancy void if any part unlawful

Where several properties, whether situated in the same or in different places, are let at a single rent but any of such properties cannot lawfully be let by the person who purports to let it, the whole tenancy shall be void: Provided that this section shall not apply where separate rents are also stated as aggregate rent payable.

  1. Commencement of rent

Where rent is stated to be payable per year or per month or at any other periodic intervals but no date is given as the date when such rent is to commence running, the rent shall commence to run from the day on which the tenancy is created, or where the tenancy is expressed to commence.

  1. “Net rent”

Where “net rent” is reserved, the sum payable shall be such as is left to the landlord after all dues regarding the property shall have been paid.

  1. Rent must be reserved to the landlord

(1)     Rent shall be reserved to the owner of the property the subject matter of a tenancy, and a tenancy shall be void if the rent therein reserved is in favour of anyone else: Provided that a periodic payment may validly be reserved in a tenancy in favour of a person other than the landlord if it is clear that such reservation is not by way of rent.

(2)     Where rent is reserved but the person in whose favour it is reserved is not expressed, it shall be deemed to be reserved in favour of the owner of the property the subject matter of the tenancy.

  1. Rent, etc., run despite death of landlord or tenant

(1)     Rent payable to a landlord shall be deemed to be payable to him and, after his death, the owner of the reversion on the property concerned, and rent payable by a tenant shall be deemed to be payable by him and, after his death, his successor in title to such tenancy; and therefore in absence of an express agreement to the contrary, any rent reserved or otherwise shall continue to be due and payable so long as the tenancy subsists, the death of the landlord or the tenant or both notwithstanding.

(2)     Where performance of any covenants or conditions in a tenancy or agreement for a tenancy is secured with a bond or penalty, with or without sureties, such security shall attach—

(a)     to the reversion as an incident to it, and may be enforced by the reversioner or assignee of the reversion; and

(b)     to the tenancy, and may be enforced against the assignee or successor in title of the tenant to such tenancy.

  1. Power to grant at any rent

Power given to any person to create a tenancy at any rent he thinks proper shall be deemed to include power to create such tenancy without charging any rent at all.

  1. Liquidated damages

(1)     Parties to a tenancy may agree on a sum that shall be paid by the tenant as increased or additional rent for breach of any particular covenant or condition of the tenancy, a sum so fixed is called liquidated damages and payment of it may be enforced by the landlord when the breach provided for occurs, provided it is a reasonable pre-estimate of damage expected to arise from such breach.

(2)     Nothing in the foregoing subsection shall apply to any sum stipulated in a tenancy where that sum, by whatever name called, is in the nature of a penalty for a breach of a covenant or condition; a sum shall be construed as a penalty where it is disproportionately large having regard to the greatest loss that could in the normal course of events flow directly from a breach of the covenant concerned, or where a large sum is made payable for non-payment of a small rent or other dues.

  1. When rent becomes due

(1)     Rent becomes due in the morning of the day appointed by the parties to a tenancy for payment thereof; if no specific day is appointed, rent becomes due on the last day of the period for which it is payable, so that rent payable annually becomes due on the last day of the year in respect of which it is payable; rent payable monthly becomes due on the last day of the month, and so on.

(2)     Rent is in arrears immediately after midnight of the day on which it is due under the foregoing subsection.

  1. When rent may be demanded or recovered

Rent may be demanded or recovered at any time after it is in arrears but not until then, and subject to any written law now or hereafter in force in the State regarding payment of rent due to the State or the Federal Government, no steps or proceedings in court or otherwise may be taken to enforce payment of rent until it is in arrears and a demand has thereafter been made for payment.

  1. Payment in advance

(1)     A tenant may if he so desires, and shall if he is so required under the terms of the tenancy, pay rent at any time before the day when it is due in accordance with this Law and such payment shall when received by the landlord or his agent, be effective satisfaction of the tenant’s obligation to pay on the due date.

(2)     Where the landlord terminates the tenancy, or the tenant is forced by an act or default of the landlord to give up possession before the expiration of the period for which rent has thus been paid, the landlord shall refund to the tenant such part of the rent as represents the unexpired period.

  1. Person to whom rent is payable

(1)     Rent shall be payable to the landlord or his agent, provided that a person who usually collects rents for a landlord shall be presumed to be his agent unless the tenant has notice to the contrary.

(2)     Where the landlord sells or otherwise transfers his reversion to a third party, such third party shall, in the absence of an express agreement to the contrary, become entitled to rent payable under the tenancy; and the tenant, as soon as he has notice of the sale or transfer is under an obligation to pay all subsequent rents to that third party as the landlord.

(3)     Payment to a person other than the landlord (which expression includes a person to whom the reversion has been transferred) shall not be payment of rent and shall not prevent the landlord from claiming rent from the tenant, unless such payment is made with the express consent, direction or authority of the landlord: Provided that payment to an agent of the landlord shall be payment to the landlord.

  1. Effect of payment of rent

(1)     Payment of rent is an acknowledgment of tenancy, and so—

(a)     a person who pays rent to another person as his landlord shall not thereafter be heard to deny such other person’s title to the reversion or to the rent; and

(b)     a person who accepts rent from another as a tenant shall not thereafter deny that other person has rights as a tenant.

(2)     Nothing in the foregoing subsection shall preclude a tenant who pays rent by mistake, fraud or misrepresentation to a person who is not entitled to if from denying that other person’s title to the reversion, or showing that he is not entitled to the rent.

(3)     Rent paid by mistake, fraud or misrepresentation to a person not entitled to it shall be recoverable from such person.

  1. Payment by assignee

Where a tenancy has been lawfully assigned, payment of rent by the assignee shall pro tanto be a discharge for the tenant-assignor.

  1. Payment by a third party

Any person may pay on behalf of a tenant, and such payment shall pro tanto be a discharge for the tenant.

  1. Deductions and refunds by mistake of law

Where a landlord or his agent by reason of a mistake of law—

(a)     allows a deduction to be made by the tenant from rent; or

(b)     refunds rent to the tenant in part or in full, that amount so deducted or refunded shall not thereafter be recovered from the tenant.

  1. Agreement to reduce rent

A landlord who, whether or not for consideration, agrees to accept and, on the basis of such agreement does accept rent at a reduced rate than hitherto shall be estopped from going back on such agreement.

  1. Rent to be paid in lawful currency

In the absence of an express agreement to the contrary, rent shall be paid in lawful currency, and payment made by cheque or bill shall be deemed to be so made when the bill or cheque is duly honoured by the bank on which it is drawn.

  1. Payment to landlord in person

Rent shall be paid to the landlord or his agent in person, or as otherwise directed by the landlord.

  1. Payment of ground rent by tenant

(1)     Where a ground rent payable by a landlord to a ground landlord is demanded by the ground landlord from and paid by a tenant of the mesne landlord, the amount of such payment may be deducted by the tenant from any rent payable by him to the mesne landlord.

(2)     Where a tenant is induced by threat of legal proceedings or ejectment to pay property tax or any other money due on the property concerned and payable by his landlord he shall be entitled to deduct the amount of such payment from any rent payable by him to such landlord, any stipulations in the tenancy to the contrary notwithstanding.

  1. When rent is apportioned

(1)     Where property which is let at an entire rent is subsequently divided among two or more persons any rent payable for that letting shall be apportioned among such persons in proportion to their respective interests.

(2)     Where a tenant transfers part of his interest to a third party, a portion of the rent payable by that tenant prior to the transfer becomes payable by the third party, such portion being proportionate to the interest transferred to him: Provided that nothing in this subsection shall be construed as relieving the tenant of his obligation to pay the entire rent payable under the original tenancy and so the landlord may proceed to recover from the tenant the entire rent or from both the tenant and the third party the respective portions due from them.

  1. Eviction of tenant and apportionment

(1)     Where a tenant is evicted by title paramount from part of the property let to him, rent payable by him thereafter for the part he retains shall be such portion of the original rent as is proportionate to the part he retains.

(2)     Where a tenant is unable despite diligent efforts to obtain possession of part of the property let to him by reason that it is held by a person claiming adversely to the landlord no rent shall be payable by the tenant upon any agreement he may have entered into to pay rent.

(3)     Where a tenant is, through no fault of his, evicted from part of the property let to him, he shall not thereafter be under obligation to pay any rent in respect of such tenancy unless he is restored to full possession.

(4)     Where a land or building or part thereof is let with moveable property to a tenant at an entire rent, and the tenant is evicted from such land or building, he shall not be liable thereafter to make any payment in respect of the movable property.

  1. Apportionment of rent in respect of time

(1)     All rents, whether payable under an agreement made in writing or otherwise, may in appropriate cases be considered as accruing from day to day, and may be apportioned in respect of time accordingly.

(2)     Notwithstanding the generality of the foregoing subsection—

(a)     where a change in the ownership of the reversion, or in the person entitled to rent payable, on a tenancy occurs at any time before the completion of a current rent period, rent shall accrue and shall be considered as accruing from day to day from the commencement of that uncompleted rent period to the day the said change occurs and the rent that thus accrues shall, in the absence of any agreement to the contrary, be apportionable as between the person entitled to rent before and after such change: Provided that rent which thus accrues shall not become payable until the rent period is completed;

(b)     where a tenancy is determined at any time before the completion of a current rent period rent shall accrue and shall be considered as accruing from day to day from the commencement of that uncompleted rent period to the day the tenancy is determined and shall in the absence of any agreement to the contrary be payable: Provided that rent which thus accrues shall not become payable until the tenancy terminates;

(c)     where a tenancy is lawfully determined and the tenant thereafter retains possession of the property let, mesne profits which shall be at the same rate as the rent payable under the tenancy, shall accrue and shall be regarded as accruing and payable from day to day and may at the option of the landlord, be claimed from the day the tenancy was determined or the day when court proceedings to recover them are commenced;

(d)     where rent is made to vary with the amount of benefit or profit which the tenant obtains from the property let, such rent shall be regarded as accruing from day to day and may be apportioned accordingly.

(3)     Nothing in this section shall be construed as applying to any rent which has already accrued whether such rent is payable in advance or otherwise.

  1. Enforcement of apportioned rent

(1)     A person entitled to any part of an apportionable rent shall have the same remedies for recovering that part as he would if he were entitled to the whole rent and such part shall be liable to proportionate deductions, counter-claims or set-off where the whole rent would be so liable: Provided that no steps by court proceedings or otherwise to recover any part of an apportionable rent shall be taken until such part has become payable under the last foregoing section.

  1. Creation of privity of contract

(1)     A sublease shall create privity of contract and privity of estate between the sublessor and the sublessee.

(2)     Where a sublessee lawfully assigns the sublease to a third party, privity of estate shall cease to exist between him and the sublessor, and shall arise between the third party and the sublessor.

(3)     Assignment by a lessee to a third party shall not affect the existence of privity of contract between such sublessee and the sublessor and accordingly, the sublessee shall continue to be liable to pay rent under the sublease notwithstanding that the sublease has been assigned and the privity of estate no longer exists between the sublessee and the sublessor.

(4)     Where a sublease is assigned by the sublessee, the sublessor shall have a right to recover the rent payable under that sublease from either the sublessee or the assignee, or partly from the sublessee and partly from the assignee notwithstanding the assignment and notwithstanding that the sublessor may have consented to the assignment: Provided that nothing in this subsection shall be construed as enabling the sublessor to recover more than the full value of such rent.

  1. Liability of tenant for rent after quitting possession

(1)     Subject to any agreement to the contrary, where any tenant quits possession of the property concerned without due notice agreed or as by law required, he shall be liable for rent as follows—

(a)     if he quits possession at the end of a rent period, he shall pay rent for one rent period thereafter;

(b)     if he quits possession before the end of a rent period, he shall nevertheless pay rent for the whole of that rent period thereafter;

(c)     if before the expiration of the current rent period or of the next succeeding rent period, as the case may be, the landlord accepts surrender of such tenancy (other than accrued rent), or actually lets the property to another tenant or occupies it himself, the liability of the tenant to pay rent under this subsection shall cease with effect from the day on which the landlord accepts surrender of the tenancy or lets the property to another tenant or occupies it himself, as the case may be, but without prejudice to accrued rents;

(d)     where he has given notice of his intention to quit the premises held by him and shall not deliver up possession thereof at the time stated in such notice, the tenant, his executors or administrators shall thereafter pay to the landlord rent for the period of notice plus rent for the period held over plus any other damage occasioned by the holding over.

  1. Liability after destruction of property

(1)     In the absence of an agreement to the contrary, where a sublease is executed for a term certain, with or without an option for renewal, the liability of the sublessee to pay rent under that sublease shall not be affected by the destruction of or damage to the property concerned by fire or otherwise.

(2)     In the absence of an agreement to the contrary, where a sublessee for a term holds over after the term granted has expired, he shall be liable, notwithstanding any damage to or destruction of the property concerned, to pay rent as follows—

(a)     as a tenant from year to year, if he has paid any rent on a yearly basis after the expiration of the term granted;

(b)     as a monthly or other periodic tenant, if he has paid rent on a monthly or other periodic basis after the expiration of the term granted.

(3)     Nothing in this section shall be construed to apply to a tenant other than a tenant under a sublease for a term certain or a tenant holding over on the expiration of a sublease for a term certain.

  1. Rent suspended when tenant evicted

(1)     Where a landlord or anyone claiming through him enters into possession of any part of the property concerned and such entry is not by virtue of a power of re-entry contained in a sublease for a breach of covenant, liability of the tenant to pay rent shall be suspended forthwith and shall not re-commence unless and until the tenant is restored to full possession of the property concerned.

(2)     Notwithstanding anything to the contrary contained in any sublease or tenancy agreement, a right of re-entry shall not include a right to physical entry without an order of court.

(3)     Where a tenant is evicted by title paramount his liability to pay rent shall be suspended forthwith and shall not recommence unless and until he is restored to full possession of the property concerned.

(4)     Nothing in this section shall apply where a tenant is evicted or possession of the property concerned is taken in part or in whole by any person claiming through the landlord or a title paramount.

(5)     Nothing in this section shall apply to allow a landlord to exercise any power of distress for rent except in execution of the judgment of a court and in accordance with the Sheriffs and Civil Process Law.

  1. No rent where tenancy for illegal purpose

No rent shall be payable for a tenancy where the landlord knows or ought reasonably to know that the property concerned is to be used or is being used for an illegal purpose or for a purpose which is contrary to morality or public policy.

PART VII

Recovery of Rent by Action

  1. Who may be parties

A person may take an immediate or other interest in land or other property or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other property although he may not be named as a party to the transfer or other instrument; and such person may in appropriate cases be a party to an action for rent.

  1. Action by or against representatives or assigns

(1)     An action for rent, including an action for breach of covenant to pay rent, may be maintained by or against the parties to a tenancy or their personal representatives.

(2)     An action for rent may be maintained against an assignee of a tenancy or against the assignor himself and rent may be recovered in full from the assignor: Provided that not more than the full value of the rent payable in respect of any rent period may be recovered for that period.

  1. Joint and several liability for rent

(1)     Where rent is payable by two or more persons jointly, any action to recover such rent shall be brought against both or all of such persons.

(2)     Where rent is payable by two or more persons severally, action to recover such rent may be brought against any of them or all of them.

(3)     Where rent is payable by two or more persons jointly and severally action to recover such rent may be brought against all or any of them.

(4)     Where judgment for rent is obtained against two or more persons jointly or jointly and severally, execution may be levied against any or all of them: Provided that where execution is levied against one or some of such persons he or they shall be entitled to contribution from the others.

(5)     The provisions of the foregoing subsections shall apply mutatis mutandis to the personal representatives of person entitled to or liable for rent.

(6)     Nothing in this section shall be construed as enabling a person to recover in respect of any rent period more than the full value of rent payable for that period.

  1. Personal representatives of landlord and tenant

(1)     The personal representative of the landlord or other person entitled to rent may recover by action any rent due before or after the death of such landlord or person entitled.

(2)     The personal representatives of a tenant may, to the extent of the assets of the estate be liable for any rent due before or after the death of the tenant.

(3)     On the death of a joint tenant the whole tenancy shall vest in the survivor who shall thereafter become liable for the rent to the execution of the estate of the deceased joint tenant.

  1. Tenant’s defences

(1)     A tenant shall be entitled to all defences in an action for rent which would be open to him in an action under an ordinary contract.

(2)     Without prejudice to the generality of the foregoing subsection, the following defences shall be open to a tenant in an action for rent—

(a)     that the landlord’s title to the property or the rent has ceased since the creation of the tenancy;

(b)     that the tenant has been evicted by the landlord or a person claiming under him from the property or part of it: Provided that this defence shall not avail a tenant in an action for arrears of rent;

(c)     that the landlord or a person claiming under him has taken possession of any part of the property concerned with intent to exclude the tenant from such part;

(d)     that the tenant has been evicted by a title paramount or has lawfully been evicted by a stranger;

(e)     that the tenant has paid or tendered the rent due before action is brought;

(f)      that the claim for rent has been barred under this Law or any written law in force in the State;

(g)     that the tenancy is illegal being contrary to a written law in force in the State or to public policy or morality; or

(h)     that the tenancy is otherwise void.

(3)     For the purposes of subsection (2) (e)—

(a)     no payment or tender shall be a defence unless it is made in legal currency and brought to the notice of the landlord or his agent;

(b)     payment into the landlord’s bank account with notice to the landlord shall be sufficient tender.

(4)     A tenant against whom an action is brought for rent may make a counter-claim or setoff against such claim.

  1. Use of occupation implies promise to pay

(1)     Subject to this Law and any other written law in force in the State and in the absence of an express subsisting tenancy, where one person uses or occupies property of another person by his permission or sufferance, there shall be implied a promise by the user or occupier to make a reasonable payment for such use or occupation: Provided that no such promise shall be implied where the circumstances clearly negative it.

(2)     Nothing in this section shall apply where a person uses or occupies a property without the knowledge of the owner or as a trespasser, or otherwise against the will of the owner.

  1. Persons liable to pay for use and occupation

(1)     Notwithstanding the generality of the foregoing section, the following persons shall be liable to pay for use and occupation of property—

(a)     any person who actually uses or occupies property of another person by his permission or sufferance;

(b)     any person who enters and takes possession of a property as a tenant of any type and subsequently transfers possession or use of such property to another person and ceases to be in actual use or possession: Provided that in such a case his liability shall continue only for so long as the transferee continues such possession or use;

(c)     a tenant who, with intent to continue as a tenant, retains possession of the property concerned after his tenancy has expired or been duly terminated;

(d)     a tenant whose subtenant continues in possession of the property concerned after his tenancy has expired or has been duly terminated even if such subtenant retains possession against his will;

(e)     a tenant who is substituted for another tenant with mutual consent of all parties;

(f)      a person who is in possession of a property—

(i)      under an agreement for a lease which was never granted; or

(ii)     pending an agreement for occupation which was never effected;

(g)     a person let into possession of a property which he intends to purchase but who remains in possession after he has become aware that the proposed sale to him will not take place: Provided that such a person shall not be liable for use and occupation in respect of the period during which he was unaware that the proposed sale will not take place;

(h)     the personal representative of a person liable to pay for use and occupation under this section.

 

  1. Who is entitled to payment for use and occupation

(1)     The person entitled to payment for use or occupation of a property is the owner thereof, who for this purpose shall be the person who, immediately before the person using or occupying the property went into possession, had the right of possession over that property.

(2)     Where two or more persons are jointly entitled to payment for use and occupation under the foregoing subsection and one of them dies, the survivor shall be entitled to such payment in respect of use and occupation occurring both before and after the death of the deceased joint owner.

(3)     Notwithstanding the provisions of subsection (1) of this section, where a tenant sublets his whole term to a third party at a rent he shall nevertheless be entitled to payment for use and occupation of the property concerned by such third party and in such a case the quantum of payment recoverable shall be the rent agreed upon between the tenant and the third party.

(4)     The personal representative of a person entitled to payment for use and occupation of property under this section shall have a right to such payment.

  1. Amount payable for use or occupation

(1)     Where the owner of a property used or occupied by another person is entitled to payment for such use or occupation, then in the absence of an agreed rent, the owner shall be entitled to an amount equal to what he would obtain as rent for the same property over the same period of time or, where it is not possible to assess such rent, a reasonable amount, as compensation for his loss of use and occupation.

(2)     Where rent has been agreed upon by the parties, such rent shall be the property measure or payment due for use and occupation notwithstanding that such rent relates to a void tenancy or is contained in a void agreement for lease.

  1. Action for use and occupation

Where an implied promise to pay for use and occupation of property arises under this Law, it shall be enforceable by action to be known as action for use and occupation.

  1. Where reversion is surrendered

Where a reversion expectant on a sublease of land is surrendered or merged, the legal interest which as against the sub-lessee for the time being confers the next vested right to the land, shall be deemed the reversion for the purpose of preserving the same incidents and obligations as would have affected the original reversion had there being no surrender or merger transfer.

  1. Apportionment on condition on severance

(1)     Notwithstanding the severance by transfer, surrender or otherwise of the reversionary interest in any land comprised in a sublease, and notwithstanding the avoidance or cesser in any other manner of the term comprised therein, every condition or right of re-entry and every other condition contained in the sublease shall be apportioned and shall remain annexed to the severed parts of the reversionary interest as severed, and shall be in force with respect to the terms whereon each severed part is reversionary, or the term in the part of the land as to which the term has been surrendered ceased, in like manner as if the land comprised in each severed part, or the land as to which the term remains subsisting, as the case may be, had alone originally been comprised in the sublease.

(2)     In this section “right of re-entry” includes a right to determine the sublease by notice to quit or otherwise; but where the notice is served by a person entitled to a severed part of the reversion so that it extends to part only of the land sublet, the sub-lessee may within one month determine the sublease in regard to the rest of the land by giving to the owner of the reversionary interest therein a counter-notice expiring at the same time as the original notice.

(3)     This section applies to subleases made before or after the commencement of this Law and whether the severance of the reversionary interest or partial avoidance or cesser of the term was effected before or after such commencement: Provided that, where the sublease was made before the first day of January, nineteen hundred, nothing in this section shall affect the operation or a severance of the reversionary estate or partial avoidance or cesser of the term which was affected before the commencement of this Law.

  1. Rent and benefit of sublessee’s covenants to run with the reversion

(1)     Rent reserved by a sublease and the benefit of every covenant or provision therein contained having reference to the subject matter thereof, and on the sublessee’s part to be observed and performed and every condition of re-entry and other condition therein contained, shall be annexed and incidental to and shall go with the reversionary interest in the land or in any part thereof, immediately expectant on the term granted by the sublease notwithstanding severance of that reversionary interest, and without prejudice to any liability affecting a covenant or of his interest.

(2)     Any such rent, covenant or provision shall be capable of being recovered, received, enforced and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land sublet.

(3)     Where that person becomes entitled by transfer or otherwise, such rent, covenant or provision may be recovered, received, enforced or taken advantage of by him notwithstanding that he becomes so entitled after the condition of re-entry or forfeiture has become enforceable, other conditions waived before such person becomes entitled as aforesaid.

(4)     This section applies to subleases made before or after the commencement of this Law, but does not affect operation of—

(a)     any severance of the reversionary interest; or

(b)     an acquisition by transfer or otherwise of provision affected before the commencement of this Law.

  1. Obligation of landlord’s covenants to run with reversion

(1)     The obligation under a condition or of a covenant entered into by a sublessor with reference to the subject matter of the sublease shall, if, and as far as the sublessor has power to bind the reversionary interest immediately expectant on the term granted by the sublease, be annexed and incidental to and shall go with that reversionary interest, or the several parts thereof notwithstanding severance of that reversionary interest and may be taken advantage of and enforced by the person in whom the term is from time to time vested by transfer, devolution in law or otherwise and if and as far as the sublessor has power to bind the person from time to time entitled to that reversionary interest the obligation aforesaid may be taken advantage of and enforced against any person so entitled.

(2)     This section applies to a sublease made before or after the commencement of this Law whether the severance of the reversionary interest was affected before or after such commencement.

(3)     This section takes effect without prejudice to any liability affecting a covenantor or his estate.

PART VIII

Licences

  1. Effect of licences granted to sublessees

(1)     Where a licence is granted to do any act, the licence unless otherwise expressed extends only—

(a)     to the permission actually given; or

(b)     to the specific breach of any provision or covenant referred to; or

(c)     to any other matter thereby specifically authorised to be done, and the licence does not prevent any proceeding for any subsequent breach unless otherwise specified in the licence.

(2)     Notwithstanding any such licence—

(a)     all rights under covenants and powers of re-entry contained in the sublease remain in full force and are available as against any subsequent breach of covenant, condition or other matter not specifically authorised or waived, in the same manner as if no licence had been granted; and

(b)     the condition or right of entry remains in force in all respects as if the licence had not been granted save in respect of the particular matter authorised to be done.

(3)     Where in any sublease there is power or condition of re-entry on the sublessee assigning, subletting or doing any other specified act without a licence and a licence is granted—

(a)     to any one of two or more sublessees to do any act, or to deal with his equitable share or interest; or

(b)     to any sublessee or to any one or two or more sublessees to assign or underlet part only of the property or to do any act in respect of part only of the property, the licence does not operate to extinguish the right of entry in case of any breach of covenant or condition by the sublessee or sublessees of the rest of the property (as the case may be) in respect of such shares or interests or remaining property, but the right of entry remains in force in respect of the shares, interest or property not the subject of the licence.

(4)     Subsection (3) does not authorise the grant, after the commencement of this Law, of a licence to create an undivided share in a legal interest.

  1. No fine to be exacted for licence

In all subleases containing a covenant, condition or agreement against assigning, under letting or parting with the possession, or disposing of the land or property sublet without licence or consent, such covenant, condition or agreement shall, unless the sublease contains an express provision to the contrary, be deemed to be subject to a proviso to the effect that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent, but this proviso does not preclude the right to require the payment of a reasonable sum in respect of any legal or other expense incurred in relation to such licence or consent.

PART IX

Miscellaneous

  1. Sublessee to give notice of ejectment to sublessor

Every sublessee to whom there is delivered any writ for the recovery of premises demised to or held by him or to whose knowledge any such writ comes, shall forthwith give notice thereof to his sublessor or his bailiff or receiver and if he fails so to do he shall be liable to forfeit to the person of whom he holds the premises an amount equal to the value of three years rent of the premises, to be recovered by action in any court having jurisdiction in respect of claims for such an amount.

  1. Restriction on and relief against forfeiture of subleases and sub-underleases

(1)     A right of re-entry or forfeiture under any proviso or stipulation in a sublease for a breach of any covenant or condition in the sublease shall not be enforceable by action or otherwise unless and until the sublessor serves on the sublessee a notice—

(a)     specifying the particular breach complained of; and

(b)     if the breach is capable of remedy requiring the sublessee to remedy the breach; and

(c)     in any case requiring the sublessee to make compensation in money for the breach, and the sublessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy and to make reasonable compensation in money to the satisfaction of the sublessor for the breach.

(2)     Where a sublessor is proceeding by action or otherwise to enforce such right of re-entry or forfeiture, the sublessee may in the sublessor’s action if any or in any action brought by himself, apply to the court for relief and the court may grant or refuse relief as the court, having regard to the proceeding and conduct of the parties under the foregoing provisions of this section and to all the other circumstances thinks fit, and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty or otherwise, including the granting of an injunction to restrain any like breach in the future as the court, in the circumstances of each case, thinks fit.

(3)     A sublessor shall be entitled to recover as a debt due to him from a sublessee and in addition to damages (if any), all reasonable costs and expenses properly incurred by the sublessor in the employment of a solicitor and surveyor or valuer or otherwise in reference to any breach giving rise to a right of re-entry or forfeiture which, at the request of the sub-lessee is waived by the sublessor or from which the sublessee is relieved, under the provisions of this Law.

(4)     Where the sublessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any covenant, proviso or stipulation in a sublease or for non-payment of rent, the court may, on application by any person claiming as sub-underlessee any interest in the property comprised in the sublease or any part thereof either in the sublessor’s action (if any) or in any action brought by such person for that purpose, make an order vesting for the whole term of the sublease or any part thereof in any person entitled as sub-underlessee to any execution of any deed or other document, payment of rent, cost, expenses, damages, compensation, giving security or otherwise as the court in the circumstances of each case may think fit; but in no case shall any such sub-underlessee be entitled to require a sublease to be granted to him for any longer term than he had under his original sub-underlease.

(5)     For the purpose of this section—

(a)     “sublease” includes an original or derivative sub-underlease, also an agreement for a sublease where the sublessee has become entitled to have the same granted, also a grant of security for rent by condition;

(b)     “sublessee” includes an original or derivative sub-underlessee, and the person deriving title under a sub-underlessee, also a grantee under any such grant as aforesaid and the person deriving title under him;

(c)     “sublessor”, includes an original or derivative sub-underlessor; also a person  making such grant as aforesaid and the person deriving title under him;

(d)     “underlease” with its grammatical derivatives has the same meaning as “sublease”.

(6)     This section applies although the proviso or stipulation under which the right of reentry or forfeiture accrues is inserted in the sublease in pursuance of the directions of any enactment.

(7)     For the purposes of this section a sublease limited to continue as long only as the sublessee abstains from committing a breach of covenant shall be and take effect as a sublease to continue for any longer term for which it could subsist but determinable by a proviso for reentry on such a breach.

(8)     This section does not extend to a covenant or condition against assigning, under letting, parting with the possession or disposing of the land sublet where the breach occurred before the commencement of this Law.

(9)     Where a condition of forfeiture or taking in execution of the sublessee’s interest is contained in any sublease—

(a)     if the sublessee’s interest is sold within a year after taking in execution, this section applies to the forfeiture conditions aforesaid;

(b)     if the sublessee’s interest is not sold before the expiration of that year this section only applies to the forfeiture condition aforesaid during the first year from the date of the taking in execution.

(10)   This section does not, save as otherwise mentioned, affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent.

(11)   This section has effect notwithstanding any stipulation to the contrary.

  1. Waiver of covenant in a sublease

(1)     Where any actual waiver by a sublessor, or the persons deriving title under him, of the benefit of any covenant or condition in any sublease is proved to have taken place in any particular instance, such waiver shall not be deemed to extend to any instance or to any breach of covenant or condition save that to which such waiver specially relates, nor operate as a general waiver of the benefit of any such covenant or condition.

(2)     This section applies unless a contrary intention appears, and extends to waivers effected before or after the commencement of this Law.

  1. Abolition of interesse termini, and as to reversionary subleases and subleases for lives

(1)     The doctrine of interesse termini is hereby abolished.

(2)     As from the commencement of this Law, all terms of years absolute shall, whether the interest is created before or after such commencement, be capable of taking effect at law or in equity according to the interest or powers of the grantor, from the date fixed for commencement of the term, without actual entry.

(3)     A term at a rent, limited, after the commencement of this Law, to take effect more than twenty-one years from the date of the instrument purporting to create it, shall be void, and contract made after such commencement to create such a term shall likewise be void; but this subsection does not apply to any term taking in equity under an equitable power of mortgage, indemnity or other like purposes.

(4)     Nothing in subsections (1) and (2) of this section shall prejudicially affect the right of the person to recover any rent or to enforce or take advantage of any covenant or conditions or, as respects term or interests created before the commencement of this Law, imposed in respect of such term or interests.

(5)     Nothing in this Law affects the rule of law that a legal term, whether or not being a mortgage term, may be created to take effect in reversion expectant on a longer term, which rule is hereby confirmed.

  1. Surrender of a sublease without prejudice to sub-underlease with a view to the grant of a new sublease

(1)     A sublease may be surrendered pursuant to the acceptance of a new sublease in place thereof a surrender of any sub-underlease derived thereout.

(2)     A new sublease may be granted and accepted in place of any sublease so surrendered without surrendering any sub-underlease. The new sublease operates as if all sub-underleases derived out of the surrender sublease had been surrender before the surrender of that sublease was affected.

(3)     The sublease under the new sublease and any person deriving title under him is entitled to the same rights and remedies in respect of the rent reserved by and the covenants, agreements and conditions contained in any sub-underlease as if the original sublease had not been surrendered but was or remained vested in him.

(4)     Each sublease and any person deriving title under him is entitled to hold and enjoy the land comprised in his sublease (subject to the payment of any rent reserved by and to the observance of the covenants, agreements and conditions contained in the sublease) as if the sublease out of which the sublease was derived had not been surrendered.

(5)     The sublessor granting the new sublease and any person deriving title under him is entitled to the same remedies of entry in and upon the land comprised in any such sublease for rent reserved by or for breach of any covenant as the rents reserved by or for covenant, agreement or conditions contained in the new sublease (so far only as the rents reserved by or contained in the covenants, agreements or condition contained in the new sublease do not exceed or impose greater burdens than those reserved by or contained in the original sublease out of which the sublease is derived) as he would have had—

(a)     if the original sublease had remained in force; or

(b)     if a new sub-underlease derived out of the new sub-underlease has been granted to the sub-underlessee or a person deriving title under him as the case may require.

(6)     This section does not affect the power of the court to give relief against forfeiture.

  1. Provision as to attornment by tenants

(1)     Where land is subject to a sublease the transfer of a reversion in the land expectant on the determination of the sublease shall be valid without any attornment of the sublessee. Nothing in this subsection—

(a)     affect the validity of any payment of rent by the sublessee to the person making the transfer or grant if given to him by the person entitled thereunder;

(b)     renders the sublessee liable for any breach of covenant to pay rent to the person entitled under the transfer or grant before such notice is given to the sublessee.

(2)     An attornment by the sublessee in respect of any land to a person claiming to be entitled to the interest in the land of the sublessor, if made without the consent of the sub-lessor, shall be void.

(3)     This subsection does not apply to an attornment—

(a)     made pursuant to a judgment of a court of competent jurisdiction; or

(b)     to a mortgagee by a sublessee holding under a sublease from the mortgagor where the right of redemption is barred; or

(c)     to any other person rightfully deriving title under the sublessor.

  1. Sub-lease invalidated by reason of non-compliance with terms of powers under which they are granted

(1)     Where in the intended exercise of any power of subletting, whether conferred by any enactment or any other instrument, a sublease (in this section referred to as an invalid sublease) is granted, which by reason of any failure to comply with the terms of the power is invalid, then—

(a)     as against the person entitled after the determination of the interest of the grantor to the reversion; or

(b)     as against any other person who subject to any sublease properly granted under the power would have been entitled to the land comprised in the sublease.

(2)     The sublease if it was made in good faith, and the sublessee has entered there-under shall take effect in equity as a contract for the grant at the request of the sublessee of a valid sublease under the power of like effect as the invalid sublease subject to such variations as may be necessary in order to comply with the terms of the power: Provided that a sublessee under an invalid sublease shall not by virtue of any such implied contract be entitled to obtain a variation of the sublease if the other persons who would have been bound by the contract are willing and able to confirm the sublease without variation.

(3)     Where during the continuance of the possession taken under an invalid sublease the person for the time being entitled, subject to such possession to the land comprised therein or to the rents and profits thereof, is able to confirm the sublease without variation by the sublessee or other person who would have been bound by the sublease had it been valid, shall, at the request of the person so able to confirm the sublease, be bound to accept a confirmation thereof and thereupon the sublease shall have effect and be deemed to have had effect as a valid sublease from the grant thereof.

(4)     Confirmation under subsection (3) may be by a memorandum in writing signed by or on behalf of the persons respectively confirming or accepting the confirmation of the sublease.

(5)     Where a receipt or a memorandum in writing confirming an invalid sublease is upon or before the acceptance of rent thereunder signed by or on behalf of the person accepting the rent, that acceptance shall as against that person be deemed to be a confirmation of the sublease.

(6)     The foregoing provisions of this section do not affect prejudicially—

(a)     any right of action or other right or remedy to which, but for those provisions or by enactment replaced by those provisions, the sublessee named in an invalid sublease would or might have been entitled under any covenant on the part of the grantor to title or quiet enjoyment contained therein or implied thereby; or

(b)     any right of re-entry or other right or remedy to which, but for those provisions or any enactment replaced thereby the grantor or other person for the time being entitled to the reversion expectant on the termination of the sublease would or might have been entitled by reason of any breach of the covenants, conditions or provisions contained in the sublease and binding on the sublessee.

(7)     Where a valid power of subletting is vested in or may be exercised by a person who grants a sublease which by reason of the determination of the interest of the grantor or otherwise cannot have effect and continuance according to the terms thereof independently of the power, the sublease shall for the purposes of this section be deemed to have been granted in the intended exercise of the power although the power is not referred to in the sublease.

(8)     This section does not apply to a sublease or land held on charitable ecclesiastical or public trusts.

(9)     This section takes effect without prejudice to the provisions in this Law on the grant of subleases in the name and on behalf of the holder of the right of occupancy in the land affected.

PART X

Rights and Liabilities on Determination of Tenancy

  1. Duty of tenant

Subject to this Law or any other written law in force in the State, the tenant shall on expiration or sooner determination of his tenancy, deliver up to his landlord the peaceable and quiet possession of the premises sublet and all parts thereof, including any part he may have sublet to a subtenant, together with all the erections, buildings, improvements and fixtures which he is not entitled to remove.

  1. Duty of tenant to eject subtenant

(1)     Where the tenant has let the whole or any part of the premises to a subtenant who is in possession at the time of the expiration or determination of the term, the tenant shall get such subtenant out so that the landlord shall have complete possession of the premises to which he is entitled.

(2)     When the tenant fails to get the subtenant out of the premises or otherwise deliver up complete possession, the landlord may maintain an action against him for failure to quit and deliver up possession at the end of the term.

(3)     In any such action, the landlord shall recover against the tenant reasonable damages and costs sustained by him by reason of the tenant’s failure to deliver up complete possession of the premises.

(4)     Where, however, a tenant of a dwelling-house had during the tenancy lawfully sublet a portion of the premises and he afterwards gives the landlord proper notice to determine the tenancy and also gives the subtenant proper notice to quit so as to determine the sub-tenancy at the same time as the tenancy was terminated, the fact that the subtenant holds over and refuses to quit shall not render the tenant, if he has done everything legally possible to give the landlord vacant possession, liable to the landlord for rent for use and occupation or for damages: Provided that this subsection shall not apply where the subletting was originally in breach of a covenant unless the breach has been waived by the landlord.

  1. Tenant’s liability by holding over

(1)     Subject to subsection (4) of the last foregoing section, a tenant shall be liable for failure to give up complete possession of the premises at the end of the tenancy; and even where a subtenant wrongfully holds over and refuses to quit, the tenant is liable for the period of such holding over: Provided that nothing in this section shall prevent a landlord from accepting a subtenant of his own tenant, in which case the tenant shall be discharged from liability under this section.

(2)     If premises are let to two persons for a term at the end of which one holds over the assent of the other, both shall be liable for the time the one actually occupies; but the one who did not actually occupy shall not be liable if the holding over was without his assent.

(3)     Where a tenancy from year to year has been determined by notice to quit, the mere accidental detention of the key by the tenant (who has quit the premises and removed his goods) for two to seven days beyond the expiration of the term does not amount to any evidence of use or occupation so as to make him liable.

  1. Interpretation

In this Law, unless the context otherwise requires—

“agent” means a person lawfully authorised by another person to do an act for or on behalf of that other person;

“contract for a sublease” includes a contract to create a sub-underlease;

“create” with regard to tenancy includes “presumed to create”;

“deed” means a writing which is signed, sealed and delivered by the parties;

“donee” of a power means a person who is given power to create tenancies;

“estate” means the sum total of interests which a person has in any land or tenement;

“infant” means a person under the age of eighteen years;

“person” includes a body corporate or unincorporated;

“power” includes a power of attorney;

“possession” includes right of possession, receipt of rents and profits, and right to receive rent and profits;

“premium” means a sum of money, other than rent, paid by a tenant to the landlord on the creation of a tenancy;

“property” includes land and buildings and interest in them;

“property concerned” means property the subject matter of a tenancy, and “property

let” has the same meaning;

“rent period” means the period of time with reference to which a rent is fixed or payable under a given tenancy, such as a year in a tenancy from year to year, a month in a monthly tenancy;

“reversion” means the interest which remains vested in the landlord during the currency of a tenancy and includes the interest which revests in him at the end of the tenancy;

“reversioner” means the owner of the reversion;

“right of occupancy” has the meaning assigned to it in the Land Use Act 1978;

“State” means Cross River State of Nigeria;

“sublease” means a term created out of, and coming next in hierarchy to, a right of occupancy; also the term so created;

“sublessor” means the person who creates a sublease;

“sub-underlease” means a term of years created out of an underlease;

“tenancy” includes a subtenancy;

“term of years” means a tenancy for any period of time short of perpetuity; not being dependent directly or indirectly on the existence of a life;

“title paramount” means a title which is superior to the titles both of a landlord neither is enabled to make a valid defence; it also means the owner of such title;

“underlease” has the same meaning as sublease;

“underlessee” and “underlessor” have the same meaning as sublessee and sublessor respectively.

  1. Short title

This Law may be cited as the Landlord and Tenant Law.

 

CHAPTER L5

LANDLORD AND TENANT LAW

SUBSIDIARY LEGISLATION

No Subsidiary Legislation

 

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