TABLE OF CONTENT Introduction Chapter One Sources to history of Land Occupancy Chapter Two Leases Chapter three Tenancies

ies Chapter Four Licence Chapter Five Other forms of Occupancy Chapter Six Distinctions and Comparisons Chapter Seven Land Occupancy Outside jurisdiction Chapter Eight Conclusion and recommendations

INTRODUCTION
Generally the relationship of landlord and tenant may be described as the relationship which exists between the parties for a demise and between their respective assigns. The relationship is one of tenure, and although in former times, it existed between freeholders, where the order of a freehold granted present a lesser estate of freehold (Such as an estate for life). In practice and at present day, the relationship of landlord and tenant arises where the owner of an estate in land grants to another an estate less than freehold and less than himself possesses in the land. Therefore rent which is regarded as something issuing out of the land and as an acknowledgement by the tenant of his tenure1 is annexed to and goes with the reversion. Rent is however not applicable in respect of a payment provided for by an agreement which merely gives a licence and does not establish the relationship of landlord and tenant, although a right of interest may be given by express agreement and is in some cases provided by the statute where there is no demise2 Since everyone cannot be opportuned at the same time to own their own properties, it is very common and unavoidable for properties to be let out on short term basis. These various arrangements of letting out
1

Hancock V Austin (1863) 14CB (N.S) 634: Provincial Bill- Posting Co. V Low Motor Iron Co (1909) & K.B., 344 (CA)
2

premises for occupation differs in terms and conditions. Hence we have arrangements by way of tenancies, leases, licences and other forms of occupancy. This seminar paper aims at considering the various forms of occupancy of properties such as leases, tenancies, licenses and stating in clear terms the distinctions between them as well as the similarities if any. Over the centuries, leases have served many purposes and the nature of legal regulation has varied according to those purpose and the social economic conditions of the times. Leases were mainly used for agricultural purposes until the late 18th century and early 19th Century when the growth of cities in industrialised countries had made leases an important form of land holding in urban areas. It is essential to point out that leases, tenancies and all other forms of occupancy discussed in this paper are non-customary land tenure systems established by the English Common Law and Equity, the relevant statutes of general application and other local statutes. It is also to be noted that over the years, local enactments have replaced certain common law principles and provisions of certain English statutes to facilitate Conveyancing and pave way for smooth transactions on land in modern times.

CHAPTER ONE

SOURCES/HISTORY OF LAND OCCUPANCY

The sources and or history of land occupancy can be considered under the based on the Common Law, English Statutes, Nigerian Statutes, Common Law and Judicial Pronouncements First to be considered is The Common Law: Due to the Constitutional history of Nigeria, Common Law of England is a major source of Nigerian Law3. Hence the common law of England relating to leases and tenancies forms part of Nigerian Law by virtue of the various inception statutes4 and subject to prevailing local circumstances and legislation. Historically, Leases and tenancies had not always been part of the Law of England which was principally feudal. It was not until towards the end of the twelfth century that Leases for terms of years became common. And even then, the relationship of landlord and tenant created remained purely contractual. They conferred no estate in the tenant and the tenant was not entitled to any of the possessing remedies which were ordinarily available to freeholders. The tenant remedy was only a personal one against the
3 4

A.O. Obiladu The Nigerian Legal System (London, Sweet and Maxwell, 1979) USS

lessor. And based on the doctrine of privity of contract, only the parties to the transaction could sue and be sued on it. However, by the 15th Century, the law had afforded the tenant the legal advantage of possession and had conferred on him an estate in the land. Therefore while retaining all the features of contract, it creates a proprietary right in the rem binding not only on the parties, but also on their assigns, and successors in the title and any person coming in contract with the estate.

ENGLISH STATUTES
Under the English statutes, Leases and Tenancies have for long been subject of statutory intervention under the English Law. Some of these statutes are also applicable in Nigeria as statutes of general application by virtue of the various reception provisions5. Prominent among such statutes is the Conveyancing Act 1882 which remains a principal enactment in land transactions in Lagos and other parts of Nigeria.

NIGERIAN STATUTES
At present all the states of the Federation have at least two local statutes regulating the relationship of landlord and tenant. In addition to the rules of common law, doctrines of equity and received English statute of general applications, there are rent control and recovery of residential premises laws. And since the bulk of English statutes regulating the relationship of landlord and tenant are not applicable in Nigeria as they do not qualify as statutes of general application, series of local legislations have had to be enacted. Thus we have the recovery of premises Act6, Rent Control and Recovery of residential premises law, Lagos State7, Recovery of premises law Lagos8, Lagos rent Act and
5 6

See for instance, The conveyancing act 1882 Cap 544, Laws of Federation of Nigeria, Abuja 1990 7 Cap R 6 Laws of Lagos State 2003 8 Cap 118 Laws of Lagos State 1993. Although this law is settled in the 2003 edition of the Laws of Lagos State, it remains in force as it has not been repealed by any statute within has it been spent. It is settled that were omission of an enactment does not amount & repeal Ibidapo v Lufthansa Airlines (1997) 4 NNCr pt 500. 124. Note that the rent control tribunal was noted as Cap R7 in 2003 Laws of Lagos State has been repealed and no longer subsisting

recovery of premises Edict9 Landlord and tenant Edict of Bauchi State 1990, Recovery of premises Edict of Rivers State, 1991, Landlord and Tenant Law of Anambra State, 1989 and landlord and Tenant law of Enugu State, 1995. Next is the CUSTOMARY LAW. This remains a veritable source of Nigerian Law. All the courts in Nigeria are enjoined to observe and enforce the observance of Customary law which is applicable and repugnant to natural justice, equity and good conscience are incompatible either directly or by implication with any law for the time being in force10. For this purpose, Islamic law also forms part of Nigerian law though mostly appears in the Northern part of the Country11.

JUDICIAL PRONOUNCEMENTS This constitutes a major source of the law relating to Landlord and Tenant. Historically the Common Law which remains the oldest source in this regard is nothing but the Common law of the realm as distilled from judicial precedents in England. In Nigeria too, there is a growing and rich body of case law on Landlord and Tenant. For example, the law that those notices to tenants must expire on the eve of the anniversary or on the anniversary of the tenancy is
9

N 12 Laws of Cross Rivers State, 1985 The section 26, High Court Law, Cap H3 Paws of Lagos State, 2003 11 See for instance, Sections 2 and 30, High Court law, Caps 64, Laws of Jigawa State, 1998. Section 30 of the law is identical with the provision of Lagos: Law of Section 2 defines Customary Law to include Islamic law
10

based on judicial interpretation of those statutes12. These are just a few of several instances of judicial pronouncements which have far reaching implications on the law of Landlord and Tenant. However, with the new Lagos State tenancy law, 2011 which came into being in August, 2011 the rights, obligations of the Tenants and Landlords for both residential and business premises were clearly stated. Generally it was observed to tilt towards promoting more of the rights of the tenants. This may not be too good on the long run as there is a high possibility of the tenants taking their landlord for granted. There is also the possibility of gross failure to comply with the rules and regulations in this regard. Hence it is hereby suggested there should be a balancing in the provisions of the law. Vis a vis the relationships between the landlord and tenants.

12

Owoade v Texaco Africa Ltd (1973) IAY/NGR 100

CHAPTER TWO
LEASE
A lease is a document creating an interest in land for a fixed period of time. It is also a contractual arrangement calling for lessee (user) to pay the lessor (Owner) for the use of an asset13. It is equally a legal contract which is enforceable by all parties under the contractual laws of the applicable jurisdiction. A lease also represents a Conveyance of possessory rights to real estate, hence it is a hybrid sort of contract that involves qualities of a deed. Furthermore a lease can be described as a demise or lease is the grant of a right to be exclusive possession of land for a determinable term less than that which the grantor has himself in the land. A Lease can therefore be said to be a specie of conveyance, and it is provided by section 205 (i) (ii) of the law of property Act, 1925 that the word Conveyance in that act includes lease unless the content otherwise requires.

PARTIES TO A LEASE The party to whom the lease is granted us called the Lessee or Tenant and the party by whom the lease is granted is called the Lessor or Landlord. The
13

Minister of agriculture and Fisheries v Matthew (1950) 1KB:140

person in whom a lease is for the time being vested is also known as a Leaseholder and the person entitled for the time being to the reversion thereon as a Reversioner. Other persons beside the landlord and the tenant may be party to the lease. It is common in long leases of residential flats for a management company to be a party to the lease for the purpose of covenanting to perform certain functions in the lease agreement. Some specific kinds of leases may have specified clauses required by statutes depending upon the property being leased and/or the jurisdiction in which the agreement was signed or the residence of the parties.

ELEMENTS OF A LEASE Common elements of a lease includes Names of the parties to the agreement The statutory date and the duration of the agreement Identifies the specific object (By Street address, make model, serial number), being leased

Provides conditions for renewal or non renewal Has a specific consideration (A lump sum, or plans periodic payment) for granting the use of the object

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Has provision for a security deposit and terms for its return. May have a specific list of conditions which are therein described as default conditions and specific remedies

May have other specific conditions placed upon the parties such as o Need to provide insurance for loss o A restrictive use o Which party is responsible for maintenance

TYPES OF LEASES Though all leases grant a right to the exclusive possession of lands or tenement for a determinate term, there are different types with various functions peculiar to uses of these types. Thus we have;
1.

A GROSS LEASE: This is when your tenant pays a flat rental amount and the Landlord pays for all property charges regularly incurred by the ownership from Lawn Mowers and Washing Machines to handbags and jewellery14 A CANCELABLE LEASE: This is a lease that may be terminated solely by the Lessee or solely by the Lessor, while a non-cancellable lease is one that cannot be so terminated. Commonly, Lease may
11

1.

14

Randel v Roman (1893) 9 T.L.R, 192; Williams v Jones )1864) 31H.2 C.256

imply a non-cancellable lease agreement whereas a Rent agreement may connote a cancellable lease. The lease will either provide specific provisions regarding the responsibilities and rights of the lessee and lessor or there will be automatic provisions as a result of local law. In general, by varying the negotiated fee to the lessor the lessee (also called the tenant) has possession and use (the rental) of the leased property to the exclusion of the lessor and others except with the invitation of the tenant.

FACTORS/DETERMINANTS OF A LEASE The factors which indicate whether or not an agreement is a lease or not are as follows A covenant for quiet enjoyment A forfeiture clause Clauses defining a specific premises or area of occupation Clauses reserving rights of entry or inspection or rights of way to the owner Clauses prohibiting or restricting assignment or underletting Clauses granting a fixed or periodic term for a definite rent The rent being exclusive of services or other property outgoing
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DETERMINATION OF LEASES A lease or Tenancy may be determined by surrender, merger, efflution of time, notice issued by the Landlord or by frustration. Each of these means shall be discussed briefly Surrender If a tenant surrenders his lease to his immediate landlord who accepts the surrender, the lease merges in the landlords reversion and is extinguished. The surrender must be to the immediate Landlord. A transfer of the lease to a superior Landlord does not amount to a surrender but operates merely as an assignment of the lease. Thus if A leases to B for 99 years, and B subleases to C for 2 years, Cs lease will be extinguished by surrender if he transfers it to B but not if he transfers it to A. Surrender may be either express or by operation of law. Surrender by operation of law will take place if the tenant accepts a fresh lease from his immediate reversioner, even though the new lease is for a shorter term than the old one or starts by a future date. And there will be a surrender by operation of law if the tenant gives up possession of the premises and the Landlord accepts it. But in the case of a joint tenancy, a surrender is not effective unless made by all the tenants15. Merger The term of years (i.e. the lease) and the reversion are concurrent Interests that cannot
15

The basis is that the interest is of joint tenancy is unservable

13

beheld by the one and same persons at the same time. If the Lessor conveys in fee simple, the term is at common law alienated. If the lessor transfers his freehold to the lessee, the lease is determined immediately at common law. But equity takes a different view and looks at the intention. If an intention expressly declares (and even in the absence of such express declaration) that the larger estate should not merge with the smaller estate, equity will presume an intention against merger unless expressly provided that merger shall result.

Effluxion of Time Where the tenancy is for a fixed time, it stands determined automatically at the expiration of the terms and no formal steps needs be taken to put it to an end. At common law, a writ of possession will be against the tenant where he fails or refuses to vacate the premises at the expiration of the term and where the recovery of premises law or the rent control and recovery of residential premises law applies, notice of intention to recover possession (i.e. seven days notice) shall be given prior to bringing an action for possession.16

Notice to quit At common law, a notice to quit is required to bring to an end all forms of periodic
16

See p section 13 Rent Control and Recovery of Residential Edict No. 6, Lagos State, 1997

14

tenancy17 and the tenancy for a fixed term if a stipulation is to that effect appears in the lease agreement18. In the case of a yearly tenancy, it is usual to give half a year notice with notice of termination in the case of other periodic tenancies such as weekly, monthly, quarterly and half yearly tenancy is the full period. Corresponding to the type of periodic tenancy in question. Thus a weekly tenant gets a weeks notice, a monthly tenant gets a months notice subject to any agreement by the parties to the contrary. On the expiration of a valid notice to quit, the tenant is considered a tenant at sufferance and where he is subsequently asked to leave and he remains in possession against the will of the landlord he becomes a trespasser and possession may be wrested from him19 Frustration The question whether a lease can be frustrated was answered in the affirmative by the Supreme Court in ARAKA v MORNIER CONSTRUCTION CO (NIG) Ltd20 In that case a yearly tenancy was created in the favour of the respondent. One of the conditions of the grant was that only the respondents expatriate engineer would reside in the house. The period of the lease coincided with the Nigerian Civil war and the Government ordered all expatriate to leave the area. When the war ended two years later, the Landlord, claimed rent for the period and the tenants contended that the Government order to vacate the area frustrated the tenancy. Relying on Viscount Simon and Lord Wright in CRICKLEWOOD PROPERTY &
17

See Obadina v Agra Services Corporation (1985) HCNLB p.215, Re Cayle (1943) 17 ALJ p 251 18 Otusanya v Obiora (1979) 4.6 CCHCJ P.1 4 Tinuola V Okon (1966), 22 AIL NCR p.188 19 Hemmings v Stoke Poges Gulf Club (1920), KB p720 20 (1978) 9 & W S.C Pg 9

15

INVESTMENT TRUST V LEIGHTONS INVESTMENT TRUST LTD 21 The court held that the tenancy was frustrated by war and that the landlord was not entitled to the rent claimed.

ESSENTIALS OF A LEASE A legal lease must satisfy the following requirements.

a.

The Rights to exclusive Possession must be given this is the essence of a lease that the tenant should be given the right to exclusive possession. A right to occupy certain premises for a fixed period cannot amount to a lease if the person granting the lease remains in general control of the property. It makes no difference that the parties made a formal agreement purporting to be a lease and call themselves landlord and tenant. There is no lease where a servant occupies his masters premises because he is required by the nature of his duties. What obtains in such a case is service occupancy. However in certain circumstances the parties may show by their language that they create a lease. In Appraiser V Railway Corporation part of the condition of employees particularly expatriates was that they would be provided with quarters at annual rent not exceeding N300 per annum. The employee was required to vacate the house at the end of his services with the
16

21

(1945), ALL ER p 252

corporation or while on leave or transfer. The Federal Supreme Court rejected the contention the appellant was not a tenant and said. A master cannot have it both ways. If the servant must live in a particular place because it is essential for the performance of his duties, he must not be asked to pay rent for the dwelling house and he is giving to enjoy it like a tenant, the plain view is that he is the tenant of it
b.

Certainty of Term The lease must be for certain duration or fixed term with duration capable of being made certain. It is essential to the validity of a lease that it shall appear in express terms or by reference to some writing which would make it certain or from the language used on what day the term is to commence and end. The fact that the term may be curtailed by forfeiture for nonpayment of rent does not affect the basic conception which is one of certainty of duration. A lease for uncertain period e.g. the duration of a partnership or military rule is invalid, However the rule invalidating uncertain terms e.g. a lease for 90 years determinable on the death of X or a lease of 25 years determinable if the tenant ceases to live on the premises. This is possible to make a lease determinable upon future event provided that the device of a determinable fixed term is used. The lease must be created in the proper way Section 3 of the Statute of frauds 1677 provided that every lease must be in writing signed by the party treating it or his agent authorised in writing.
17

c.

This provision excepted leases for a period not exceeding 3 years from its creation. Section 3 of the Real property Act 1845 required a deed in all cases in which existing law required writing a lease required by law to be in writing shall be void at law unless also made by deed. The exception as to lease of 3 years or less remained in force. For the states carved out of the defunct Western Nigeria, the applicable Law is the Property and Conveyancing Law 1959. Section77(1) provides that all conyeyances of land or of an interest therein are void for the purpose of conveying or creating a legal interest unless made by deed. But section 79(2) excepts a lease which 1. Takes effect in possession 2. For a term not exceeding 3 years (Whether or not the Leasee is given the power to extend the term) 3. At the best rent reasonably obtainable without taking a fine
d.

Certainty of persons. The parties to the lease must be clearly defined22 and they must be juristic persons with full contractual capacity23 under section 17 of the Property and Conveyancing Law 1959, an infant cannot grant or take a legal lease. Similarly, section 7 of the Land use Act makes unlawful for the Govenor to consent to the

22 23

United Bank For Africa Ltd v Tejumola & Sons Ltd (1998) 2NWLR (Part 79) 662 Idowu v Williams (1974) 3 CCHCJ 344

18

assignment or subletting of a staturory right of occupancy to a person under the age of 21 years24

24

Following the recommendation of the Nigerian Law reform Commission, the age of the majority is now 18. See for example section 26 of the Infant Edict 1998 of Rivers state

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CHAPTER THREE TENANCY

Another type of occupancy is TENANCY. A Tenant both by derivation and usage is someone who holds land of another for which purpose is immaterial whether he does so by contract or by estate. Although he remains contractually liable to the landlord after assignment, an original tenant who has assigned cannot thereafter be properly described as the tenant, for he no longer holds the land. Also a tenancy is an Estate in land granted for a determined period of time that is, terms of years or fixed term. For example a tenancy may be 6 months, 1 year, 21 years or 99 years etc

TYPES OF TENANCY
1.

Fixed Term Tenancy or Tenancy for years This lasts for some fixed period of time. It has a definite beginning date and a definite ending date. However despite the name in tenancy for years, such a tenancy can last for any period of time even a tenancy for one week may be called a tenancy for years. At common law, the duration did not need to be certain, but could be considered upon the happening of some events (e.g. until the crops are ready for harvest, or until the war is over). In many
20

jurisdictions that, possibly has been totally or partially abolished. A Fixed term tenancy runs to an end automatically when the fixed term runs out, or in the case of a tenancy that ends on the happening of an event, when the event occurs
2.

Periodic Tenancy This is also known as a tenancy from year to year, month to month, week to week, it is determined by the terms of payment of rent. Either the landlord or the tenant may terminate a periodic tenancy before the period has ended, without incurring an obligation to pay for the month remaining on the lease. However, either party must give notice if it intends terminate a tenancy from year to year, and the amount of notice is either specified by the lease or by state statute. The notice must also state the effective date of termination, which in some jurisdictions must be on the last day of the payment period. Tenancy at will A tenancy at will which either the Landlord or the Tenant may terminate at any time by giving reasonable notice. It is not associated with a time period. It may last for many years, but it could be ended at any time by either the lessor or lessee for any reason or for no reason at all. A tenancy at will is broken again by operation of law if the
a.

3.

Tenant attempts waste against the property

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b. Tenant attempts to assign the tenancy

c.

Tenant uses the property to operate a criminal enterprise

d. Landlord transfers his/her interest in the property e. Landlord leases the property to another person f. Tenant or Landlord dies
4.

Tenancy at Sufferance This may arise where a lawful tenant remains on the property without permission after the tenancy has come to an end. A tenant at sufferance is similar in some respects to a trespasser but with the distinction that the tenant at sufferance entered the property originally as a lawful entrant. A tenancy at sufferance must be distinguished from a statutory tenancy under the rent act. It is sometimes called a holdover tenancy. It exists when a tenant remains in possession of a property after the expiration of a lease and until the Landlord acts to eject the tenant from the property. Although the tenant is technically a trespasser at this point and possession of this type is not a true Estate in land, authorities recognise the condition in order to hold the tenant liable for rent. The Landlord may evict such a tenant at any time and without notice.

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5.

Tenancy by Estoppel A tenancy by estoppel may arise where a person purports to grant a tenancy at a time when he himself has a defective title the property concerned. The Landlord may, for example, have contacted for purchase the purchase the property but not yet had it conveyed to him at the time he purports to create a tenancy of it. At that stage the Landlord will only have an equitable interest himself and so cannot create a legal tenancy. Alternatively the Landlord may have a mortgage on the property which contains terms either forbidding or restricting his right to grant tenancies. The Tenant may not be aware of his Landlords defect in title, because a tenant (or Subtenant) is not allowed to ask to see the freehold title due to section 44(2), Law of Property Act, 1925.

FIXED TERM TENANCIES There are there three main types of fixed term Tenancies.
I.

Many tenancies are expressed to last for a fixed number of years, such as a 99 years building lease. Apart from the formalities required to create such tenancies, this type presents few problems.
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II.

A tenancy may be expressed to last for the duration of a certain persons lifetime. Such tenancies are converted into 90 year fixed-term tenancies by S-149(6), Law of Property Act, 1925 A perpetually renewable lease is one which contains an option to renew on the same terms as the present. As this will include the option to renew, the tenancy could theoretically continue indefinitely by a series of renewals and is therefore of uncertain duration. Such tenancies are converted into 2,000 year fixed terms by S. 145 Law of property Act, 1922

III.

PERIODIC TENANCIES Unlike fixed term tenancies, periodic tenancies have no initial limit on how long they will last, since they automatically continue from one period until the next period. It is brought to an end by the appropriate period of notice. A periodic tenancy can arise expressly, but it may also arise by implication, such as when a person has been allowed into occupation of property with the intention of creating a tenancy and rent is thereafter paid on a periodic basis. Payment of a weekly rent in such circumstances may create the inference of a weekly tenancy, although the surrounding circumstances may negate such an inference25 Periodic tenancies are not contrary to the rule requiring certainty of term, since the tenancy must last for a
25

Javid v Aqil (1991) 1 ALL ER, 243

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minimum of one period, and will then continue indefinitely until brought to an end by the appropriate notice to quit.26

CUSTOMARY TENANCY Customary tenancy arises where a customary landowner grants to another person of customary law, the right of occupation and use of the land in return for the guarantees recognition of the title of the guarantor and payment of tribute. The legal nature of the interest of a customary tenant in the land granted to him has been described by Elias CJN (as he then was) in AGHENGHEN & ORS V WAGHORENGHOR & ORS27 as follows: In Customary Land law parlance, the customary tenants are not gifted the land; they are not borrowers or lessees; they are grantees of land. Under Customary tenure and hold as such, a determinable interest in the land which may be enjoyed in perpetuity subject to good behaviour28. Customary tenancy is not synonymous with absolute gift to land. Unlike a gift of land which amounts to an absolute transfer of title in land, customary tenancy creates a determinable interest on land and though enures in perpetuity, it may be determined upon the occurrence of certain event which may never happen29.
26

Prudential Assurance Co Ltd V London Residuary Body (1992) 3 All ER 504 BOWEN v ANDERSON (1894) eB, 184, CENTURY V MATLODGE (1974) CH 1 27 (1874) 1SC p.1 28 1974 1SC p.6 29 Generally a misbehaviour makes the tenancy liable to forfeiture under customary law

25

Customary tenancy has no place in the English Leasehold System, for not only does it lack the certainty of durations which characterises an English Lease, the incident of the tenure is payment of tribute not rent by the customary tenant to the overlord30 The customary tenant has exclusive possession hence, he has the right to exclude everybody else from the land including the overlord31 PROTECTED AND STATUTORY TENANCIES Under the rent Act, 1977 the status of a protected tenant is conferred on a tenant who falls within Section 1 of the Housing Act, 1988 and whose contractual tenancy has not yet come to an end by either the passing of time or notice, but who qualifies for protection under the Act. At the end of the contractual tenancy, the tenant (or his statutory successors), of resident, may enjoy security of tenure as a Statutory Tenant (or Statutory Tenant by succession).

ASSURED TENANCY AND ASSURED SHORT HOLD TENANCY The assured principle is that an assured tenancy confers security of --------- but little protection against high rents, what an assured short hold tenancy confers is security of tenure at the end of the contractual period but does provide very limited protection against excessive rent levels.
30 31

See Lasisi and Audu v Tubi & Anov (1974) 1 ALL NLR (pt ii) P 438 See Ayoola v Ogunjimi (1964) ALL N2R p188

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SECURED TENANCY A Public sector tenant who enjoys security of tenure under the Housing Act, 1985, is referred to as a Secure tenant. This status confers on the tenant various benefits, including the right to buy the freehold of the property.

EXCLUDED TENANCY Section 31, Housing Act, 1988 created the concept of an Excluded Tenancy for the purpose of SS 3 and 5 Prohibition from eviction Act, 1977. These two provisions concern prohibition of eviction without the process and validity of notices to quit respectively. Basically it involves the Landlord or members of his family sharing accommodation with the tenant and the Landlord occupying the same building (which in case of sharing with a member of the Landlords family is not on purpose built block of flats) as his only or principal home.

DETERMINATION OF TENANCY Tenancy just like a lease is equally determined or brought to an end in different ways. These ways include Surrender, Merger, Effluxion of time, Forfeiture, Frustration, Rescission and Notice to Quit. Each of these ways have been examined under a form of
27

occupancy called Lease, therefore we shall not go into details on it here.

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CHAPTER FOUR

LICENCES
License is yet another form of land occupancy. By definition a licence is a personal priviledge in the form of authority or permission granted a person to enter and use premises or perform some acts therein which would otherwise be wrongful or amount to trespass32. The grantor is known as Licensor and the grantee, Licensee. Creation of a licence is appropriate in circumstances requiring a temporary or transient occupation of premises either gratuitously33 or at a fee34 or in a situation where the licensee is contractually entitled to exploit the land or improvements on it35 or to extract valuable materials there from36

TYPES OF LICENCE Licence may be categorised as follows:

a.

Bare Licence A bare licence gives the licensee the permission to enter and use the premises or reside therein without furnishing any consideration. The licensee has no interest whatsoever in the land and

32 33

See Mobil v Johnson[Supra] See Anifowose v Siyanbola (1956) SCNR p.139 34 See Smith v West African Pictures Ltd (1975) 6CC HCJ p 933 35 An improvement is anything of quality attached to the land directly resulting from the operation of capital labour 36 See Okoye v Dumez Ltd (1985) INWLR (pt4) & 283

29

has to comply strictly with the conditions of grant. In Anifowose v Siyanbola37 for example, permission live in a premises by an act of grace was held to be a bare licence.
b.

Contractual Licence A contractual licence is one given for valuable consideration such as payment of fees for the use of premises enjoyment of rights therein e.g. cutting timber to sell under contract or the right to enter cinema or railway station after purchase of ticket38. An example of this type of licence was demonstrated in the case of Smith V West African Pictures39 In that case, an arrangement whereby the grantee of a possessory40 licence over land meant for use for a cinema business was to pay 40%of the earnings to the grantor was held to be a licence for value. Statutory Licence under the Land Use Act41 The Govenor is empowered by the Land Use Act to grant licence to any person to either to enter upon any land which is not the subject of any right of occupancy to remove or extract there from any stone, gravel, clay etc (excluding minerals) which may be required for building or for manufacture of building materials.

c.

FORM OF LICENCE
37 38 39 40 41

(1956) SCN, L P.139 See Umezurike v George (1973) CCHCJ p. 62 See Cap 202 4N 1990 See Cap 202 LFN 1990

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A licence may be created orally or in writing42. The Statutory requirement of writing for the creation or transfer of interest in land43 is inapplicable since a licence creates a mere personal priviledge in favour of the grantee without an estate in land44. Even the creation of a licence coupled with a grant of an interest in land does not imply the grant of an estate in land45.

REVOCATION OF LICENCE A licence may be revoked by giving notice of revocation to the licence to the licensee. Where the license is given gratuitously it is revocable at any time by giving notice and the licensee must vacate the premises forthwith otherwise he becomes a trespasser46. A licence given for valuable consideration or coupled with a grant of interest in land requires reasonable notice before revocation and reasonable time to enable the licensee remove his things from the land. 47 What constitutes reasonable notice is a question of fact and depends on the circumstances of each case which include the type of user rights permitted by the licence and the commitments of the licensee at the time of serving the notice of revocation48. The power of a licensor to revoke the licence is subject to the contract
42 43 44 45 46 47 48

It need not be by deed See S.4 Statute of grants 1677 5.77 Property and conveyancing law, cap IOJ LWN 1959 See Adesina v Oladotun (1972) UILR p.214 & 248-9 See Cl v Cty Connect (1967) 2LR p115 See Smith v West African Pictures Ltd (1975) 6 CCHCJ p.933 See Oyekoya v G.B. olivant Ltd (1969) ANNLR p.80 See Johnson J in Smith v West African Pictures Ltd (1976) 6 CCHCJ p.937

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between the parties the terms of which must be properly construed. For example, where the licence is given for value has a limited purpose and duration it is irrevocable until the purpose is fulfilled49. If the duration of usage is fixed under agreement, a shorter notice constitutes a breach. In any event where the notice is shorter than that required under the agreement or falls below what the circumstances of the case requires to satisfy the test of reasonableness, the licensee is entitled to damages for loss of earnings for the remaining period under the agreement or for such period as would be reasonable in the circumstances50. But the licensee in such cases cannot restrain the licensor from entering into possession by way of an injunction51, neither can he sued for trespass52.

49 50 51 52

See See See See

Smith v West African Pictures (supra) Mobil Oil v Johnson (supra) Adesina v Oladotun (supra) Aina V Okusedun(1975) 4CCHCJ p 617

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CHAPTER FIVE MISCELLANEOUS OCCUPANCY

Other forms of occupancy which we can also refer as miscellaneous occupancy of premises are as follows:
1.

HOTELS Some occupancies fall into categories other than tenancies. Lodgers and hotel guests are not classified as tenants. They do not have exclusive possession of the premises or any responsibility for the premises. They receive benefits other than those usually associated with the landlord-tenant relationship. They have the rite to use the premises they occupy only within the limits set by the landlord (that is, the hotel or innkeeper). The owner may enter the premises at any time. The law of innkeeper is a special area of the law not generally considered part of the landlordtenant law and will therefore not be discussed here. COOPERATIVES AND CONDOMINIUMS: There has been a growing demand for cooperatives and condominiums, for several possible reasons. The cost of acquiring residential real property in an urban community in particular, has greatly increased also many persons like the idea of receiving services through
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2.

joint effort. Whatever the reasons, the popularity of this type of ownership is growing. These are not tenancies, but ownership of real property. They are discussed here but only briefly, because many tenants decide to become owners of cooperatives and condominiums. (This subject is now treated extensively in Legal Almanac No72 Cooperatives and Condominium by Patrick E. Kehoe,) A Cooperative apartment house has been defined as a multi-unit dwelling in which each resident is has an interest in the corporation or entity owning the building; the resident cooperator holds shares of the same and a lease that entitles him to the occupancy of a particular apartment within the building. A CONDOMINIUM is based on joint ownership, that is, there is joint ownership of dwelling units in a building. Each resident is known as a unit owner and is in fact the owner of the condominium. He enjoys the exclusive ownership of the apartment or unit.
3.

Tenancy in Common (TIC) This unlike the regular or common tenancy as a form of occupancy refers to arrangements under which two or more people co-own a parcel of real estate without a right of survivorship. This type of co-ownership allows each co-owner to choose who will inherit his/her ownership interest upon
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death. By contrast, the type of coownership called Joint Tenancy requires that each co-owners interest pass to the other co-owner upon death. The broader terms Fractional Ownership, Shared Ownership and Co-ownership encompass all arrangements involving two or more owners, including tenancy in common and joint tenancy. The terms tenancy in common tenants is common, and TIC can be confusing because they are used interchangeably to describe a variety of co-ownership arrangements with very different characteristics and purposes.

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CHAPTER SIX

DISTINCTION AND COMPARISON BETWEEN THE VARIOUS TYPES OF OCCUPANCY

In this chapter, an attempt has been made to distinguish between the various forms of occupancy, all of which we have earlier expantiated one after the other. First to be considered is the distinction between a lease and a licence.

DISTINCTION BETWEEN A LEASE AND A LICENCE Basically the label which the parties choose to place on an agreement is not decisive, because an agreement described as a Licence may create a tenancy. Good examples are the cases of: ADISCOMBE GARDEN ESTATES Ltd V CRABBE53; SKIPTON BUILDING SOCIETY V CLAYTON54. The distinction between a lease and a licence is crucial because many of the protections offered to tenants are not offered at all. Or to the same degree, to persons
53 54

1958, I QB 513 1993 25, HCR 596

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who have been given merely a licence to occupy. This distinction is of particular importance in the private sector. Both the Housing Act, 1988 and the Rent Act, 1977, for instance gives full security of tenure to many tenants, but not to licensees, because of the statutory requirements that a dwelling must have been let for either of the statutes to apply. Some protection is given to licensees by other statutes such as the Protection from Eviction Act, 1977 this is not the case however, unless the Housing Act 1985, which applies in the public sector. An occupant of a council house, if in exclusive possessions may have a secure status despite being only a licensee, unless the license was granted merely as a temporary expedient to a person who entered originally as a trespasser. See S 79(3) and (4), Housing Act, 1985. The protection from Eviction Act, 1977, gives some protection to certain classes of licensee (see sections 1, 3 and 5) nevertheless, it still remains true as a broad generalisation, that the status of a tenant is more secure than that of a licensee.

Other clear distinctions between a lease and a licence are as follows

1.

A lease can give rise to one of the two legal estates which are possible under S 1(1) Law of Property Act, 1925; a licence cannot confer a legal estate on the licensee A lease grants to the tenants an interest in the relevant property; a licensee on the other hand
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2.

gives merely a personal permission to occupy, without which the licensee would be a trespasser
3.

A lease conveys an estate in land to the lessee, but a licence passes no estate to the licensee, it merely gives him the right to the use of the premises for a given purpose and to do something rightfully on the land which would have otherwise amounted to trespass55. The Law implies certain covenants in regulating the relationship of Landlord and tenant56 which is not the case with a licence. Parties to a licence can only be bound by express terms contained in the licence Because a lease gives the lessee an estate in the land, entry into the demised premises by the lessor without the lessees permission or authority amount to trespass for which the lessee is entitled to damages. An unauthorised interference by the licensor in the land occupied by the licensee does not amount to trespass since the latter unlike the lessee has no exclusive possession of the demised property the licensor may however be liable on damages for breach of contract or in unlawful ejectment-57. A lease when granted cannot be revoked but the grantor of a licence can revoke it upon giving a reasonable notice for the grantee notwithstanding

4.

5.

6.

55 56

See Okoye v Dumez (1985) NNL p(pt4) p783 Covenants are usually impliedd in leases to give the tenant the full benefit of his legal estate in land (e.g. covenant for quiet possession,non derofation from grant) or to give the landlord reasonable protection to his reversion (e.g. tenant like user, non denial of title etc) 57 See Segfa Ltd v Cotgas Ltd(1981) OYSTC p 49

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that it is made by deed unless the licence is coupled with an interest made by grant, or for valuable consideration58
7.

A lease can be assigned to a third party or a sublease created out of a lease59 provided there are no covenants against assignment or subletting in the lease agreement while a licence is neither assignable nor capable of being sublet or transferred in any form since it gives a mere personal right to the licensee60 A lease is not determined by the death of the lessor61 or by assignment of the reversion while a licence is determined by the death or change in grantor since it merely gives a personal right to occupy

8.

DISTINCTION BETWEEN TENANCY AND LEASE These two terms are used interchangeably. There is however a very thin line between them by way of distinction, which is the duration of the agreement signed by the parties. For example, Tenancy is for a

58 59

See Smith V West African Pictures Ltd (1975), CCiiCJ pg 33; PP 934 993, This because a lease creates an estate in land 60 See Nmeregini v Port Harcourt NL Council (1959) SCNL R p. 140 61 A Lease is a legal estate binding not only on the partners to it but also their successor in title

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duration of less than three years, it could also be oral, while lease is for a longer period of up to 99 years.

DISTINCTION BETWEEN TENANCY IN COMMON AND IN CONDOMINUM The essential difference between a cooperative and a condominium is that in a cooperative, the cooperator as is known, has a share or shares in the corporation or other legal entity owning the building or premises and a lease or a right to receive a lease to one of the units of the building. A condominium on the other hand in a sense divided the property into units. Each person participating in the condominium is the owner.

CHAPTER SEVEN
LAND OCCUPANCY OUTSIDE JURISDICTION South Africa and Malaysia SOUTH AFRICA: In South Africa, transfer of ownership of immovable property automatically transfers an existing lease of the property concluded with the previous owner to the new owner as landlord. The tenant is not entitled to rescind/resile from the lease agreement when his previous landlord is substituted by the new owner. The tenant may however, have legitimate reasons to object
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to the application of this common law rule on the basis of the protection afforded by the constitution. The Huur gaat voor koop rule (Hire takes precedent over sale) came about to protect the rights of a tenant to continued occupation of the property. This maxim confers upon the tenants the real right to continue occupying the property subsequent to change of title, thus allowing the tenant a degree of certainty that the new owner will not eject him from the property. This goes without saying that the tenant will enjoy the priviledge of holding the real right against someone elses property, provided the tenant continues to comply with the terms of the lease. The new owner steps into the shoes of the old landlord and no new contract comes into existence.

MALAYSIA: The position here is that all leases have to be registered. In fact a lease that is not registered is said to be void. The registration is highly beneficial to the lessee because his interest in the title is effectively made known to 3rd parties. Any person taking a subsequent charge does so subject to the existing lease. Leases and tenancy are also used interchangeably here too. Traditionally, the word Tenancy has been used for letting for short periods. When such a letting is for a longer period it is called a lease.
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CONCLUSION AND RECOMMENDATION

This paper has critically analysed the various forms of land occupancy both within and outside our jurisdiction. Concepts such as tenancy, lease, licence, hotels, condominiums and other miscellaneous forms of occupancies were all discussed. Comparisons were also made with distinct features peculiar to each one of them were stated. We observed that some of these forms of occupancies are so closely related that they are often interchangeably used and that the label which the parties choose to place on an agreement is not decisive. Foe example, an agreement describes as a licence may therefore create a tenancy as was enunciated in the case of ADDISCOMBE GARDEN ESTATE LTD V CRABBLE 1958 1QB 513 and SKIPTON BUILDING SOCIETY V CLAYTON (1993) 25 HLR 596 . It was also observed that the issue of title is what distinguishes a licence from either the lease or the tenancy. We also noted in the course of writing this paper that the terms of occupying residential accommodation are quite distinct from that of commercial premises. It was also obvious that the position of land occupancy in countries like South Africa and Malaysia are quite different from what is operational in Nigeria.

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We therefore suggest that uniform rules and regulations should be enacted to allow for equal treatment for all forms of land occupation.

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