For the Purpose of Bar Part 2 we need to understand this topic……Mr Sylvester.
What to Know;
1.
Relevant
cases and principles
2.
Applicable
laws and jurisdiction of applicability.
TERMS TO BE FAMILIAR
WITH
1)
Demised Property: Subject matter of a
lease usually a property
2)
Term of Years: Duration
3)
Lessor/Landlord/Sub-lessor: Grantor of
leasehold interest
4)
Lessee/Tenant/Sub-lessee: Grantee of
leasehold
5)
Guarantor: A person who undertakes to
guarantees the due performance of the covenants and terms of lease.
ESSENTIAL ELEMENTS OF A LEASE
Our
understanding of these elements will assist us in answering questions and knowing
the defects in a lease agreement. We have;
1)
Certainty of Parties
2)
Certainty of Property
3)
Certainty of Terms
4)
Certainty of Commencement Date and
Duration of Lease
5)
Exclusive Possession
6)
The lease must be properly created.
CERTAINTY OF PARTIES
Ø The
parties must be natural person or juristic person. Meaning that they must have
the capacity to sue and be sued-UBA V
TEJUMOLA &SONS LTD
Ø They
must be identified and mentioned in the agreement- ODUTOLA V PAPERSACK(NIG) LTD
Ø The
address of the parties must stated and described
Ø Lessor – Lessee
Ø Sub-lessor-
Sub-Lesse Designation for
the parties
Ø Landlord-
Tenant
POSER: CAN A MINOR BE A
PARTY?
Generally,
only natural persons who are capable of being sued and can sue can be a party. A
minor suffers from a legal disability which affects his capacity to sue in his
own capacity.
Consequently, by virtue of Section 7 of Land Use Act, it provides
that it shall not be lawful for the governor to grant a statutory right of
occupancy or consent to the assignment or subletting of a statutory right of
occupancy to a person under the age of 21
years.
However,
by virtue of Subsection (a) of that Section 7, where there is a guardian who
for that person under the age of 21, the governor may grant or consent to the assignment,
subletting of a statutory right of occupancy to such guardian on behalf of such
person under age.
So
what this means is that in a tripartite agreement, the minor can be a party
when there is a guarantor.
POSER: Assuming we have ‘’BETWEEN,
ENEFAA CHAMBERLAIN OF 45, TELLER ROAD, ONITSHA, ANAMBRA STATE( LANDLORD) OF THE
FIRST PART AND NANS( TENANT)OF THE SECOND PART’’
The
defects in this draft are;
1)
No commencement part: THIS TENANCY AGREEMENT made this__ day of __ 20___
2)
NANS is not a juristic person so it
cannot be a party: Incorporated trustee of NATIONAL ASSOCIATION OF NIGERIA
STUDENT
3)
The Address of NANS is missing
We
believe that you understand this certainty of Party
CERTAINTY OF PROPERTY
The
property must be;
Ø Identifiable
Ø Ascertainable
Ø Adequately
described
Ø Must
be in existence at the commencement date of the lease.
CERTAINTY OF TERMS
A
lease must;
Ø Grant
a definite term
Ø The
duration which is made up of the commencement date and expiration date must be expressly
stated
In UBA V TEJUMOLA: The court laid down some principles in relation to
certainty of term; the lease must have a certain beginning and ending, and the
terms must be clear and unambiguous that it will not be capable of having another
meaning
.
CERTAINTY OF COMMENCEMENT DATE AND
DURATION
Ø Usually,
the commencement date is inserted in the lease agreement.
Ø It
must be expressly stated and not ambiguous or
Ø Predicated
upon the happening of a contingent that is not probable.
In
LACE V CHANDLER: in this instant
case the lease agreement was purportedly granted ‘’FOR THE DURATION OF THE WAR’’.
The issue was, ‘’the duration of the war’’ certain enough to grant a good
leasehold interest?
CAPITAL
NO, the reason the court gave was that;
Ø Neither
was the length of the war certain, nor was the method of determining if and
when the war was ended
Ø Prospective
certainty is required in the certainty of duration of a lease.
IN BOSAH V ORJI:
The
main issue, for determination is whether the deed of lease signed by both
parties is valid and subsisting. It is the case of the plaintiffs that the
lease is not valid because the commencement date of the lease was hinged on the
day the defendant obtains Certificate of Occupancy for building on the inbuilt
part of the land, and the lease should run for 60years.
PRINCIPLES FROM THE CASE
Ø For a lease to be valid its date of commencement must
be certain or capable of being ascertained
Ø Although the
date of commencement of the lease was not named therein, the date has been made
certain by the contingency reserved therein. The result is this. The date of commencement
is certain. And the duration of the term of the lease is also certain.
In OKECHUKWU V
ONUORAH: In
the instant case the commencement
date of the lease was hinged on the date the Certificate of Occupancy is
obtained by the lessee on the property demised.
Ø The court held
that the commencement date of the lease agreement is hinged on a future
occurrence taking place as long as the future occurrence is ascertainable, then
the lease will be valid.
Ø Furthermore, the
court held that; Parties who enter into a contract are expected to honour its
terms. A party who induced the other party to enter into a contract, which contract
provides benefits for the inviting party which he has utilized without
complaint, he cannot be found to deny the validity of that contract
IN OSHO &
ANOR V FORIGN FINANCE CORPORATING & ANOR
The
court sets out requirements of a valid lease including;
1)
Words
of demise
2)
Complete
agreement leaving no ambiguity to its purport
3)
The
identification of the parties to the agreement
4)
The
premises must be clearly identified
5)
Commencement
and the duration of the agreement
IN
AMINU V NZERIBE: A lease that had no
date was declared invalid.
In
UBA V TEJUMOLA: just put this case
on your head because it very unique, most of the ratio decided in the case
touch on various elements of a lease.
PRINCIPLES FROM THE CASE
Ø It is settled law
that an essential term of an agreement for a lease is the day of the
commencement of the term to be created by the lease.
Ø that the date of
the commencement of an agreement for a lease must be agreed to by the parties
Ø a contract for a
lease is enforceable notwithstanding that the commencement of the term may be
expressed by reference to the happening of a contingency which is at the time
uncertain provided that at the time that the contract is sought to be enforced,
the event has occurred and the contingency has happened.
CREATED IN A DUE
AND PROPER MANNER
This
simply means the lease should be evidence in a valid document where the law stipulated
it to be so.
Ø A lease agreement
for or less than 3 years usually referred to as tenancy agreement may be made
orally or in writing
Ø A lease for over
3 years must be by deed. See section
77(1) PCL
Ø The intention of
the parties must be contained in the lease.
In
ODUTOLA V PAPERSACK LTD
PRINCIPLES
FROM THE CASE
Ø It is the
general accepted practice that tenancy agreement is made in writing, but where
a party alleges it existence in oral agreement, he must give credible evidence
as to the modalities of such agreement i.e He must prove such agreement to the
hilt.
Ø The court laid
down some content that will make an oral agreement valid and enforceable;
a)
The
parties concerned
b)
The
property involved
c)
The
term of years
d)
The
rent payable
e)
The
commencement date
f)
The
term as to the covenants
g)
The
mode of its determination.
The
court held that in the absence of these evidences, the court cannot speculate
or conjecture of the content of the so-called oral agreement
Section 5 of the
Law Reform Contract Law Cap.66 Laws
of Lagos State which provide as follows;
"No
contract to which this section applies shall be enforceable by action unless
the contract or some memorandum or note in respect thereof is in writing and is
signed by the party to be charged therewith or by some other person lawfully authorized
by him."
However,
based on the principle of equity, in the case of WALSH V LONSDALE: the court applied the principle of equity that
states
‘’equity looks at the intention of
the parties and not the form and equity regards as done which ought to be done’’
In
the line from the case, this means that the court will deem an agreement to
create a lease with all the elements to operate as a lease not withstanding
that it is not created under a seal. Such a circumstance must not be
contemplated by that party who intend to rely on it, it must come as naturally
and the circumstance of the case will determine.
EXCLUSIVE
POSSESSION
The ground rule is that a leased property must
be held to the exclusion of other persons including the landlord. It must not
be subject to any disturbance or other conditions of sharing with the lessee.
In the case of SWEET V MOUNTFORD: The court
held that for there to be a valid lease, the lessee must have exclusive
possession. The court held that the defendant had an exclusive possession and
then the landlord will only have the limited right to repair.
The court went further to differentiate
between a party that enjoys exclusive possession and a lodger (licensee). The occupier
will be a lodger if the landlord provides attendance or service which requires
the landlord or his servants to exercise unrestricted access to use of the
premises. A lodger is entitled to live in the premises but cannot call the place
his own.
A PERSON MAY
OCCUPY A PROPERTY WITHOUT NECESSARILY BEING A TENANT BUT A PERSON CANNOT BE A
TENANT WITHOUT EXCLUSIVE POSSESSION. EXAMPLE YOU AND I IN THE LAW SCHOOL HOSTEL
TO BE CONTINUED!!!!
THANKS
FOR STOPPING BY, READ AND SHARE………
READ
HARD
REST
HARD
EAT
HARD
PRAY
HARD………..ONLY THE LIVING WILL BE CALLED TO BAR……
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