N.B COVENANTS IN LEASES WILL BE
IN THE MISCELLANEOUS PART OF THE LEASE AGREEMENT.
N.B: YOU MUST LEARN HOW TO DRAFT
THESE COVENANTS FOR THE PURPOSE OF BAR PART 2 AND YOU CANT DRAFT WHAT YOU DON’T
KNOW……..MRS JAMES
We have
three types of Covenants;
1.
Express
Covenants
2.
Implied
Covenants
3.
Usual
Covenants.
For the
purpose of our write up we will be discussing EXPRESS COVENANTS.
COVENANT TO PAY
RATES AND OUTGOINGS
GENERAL RULE: it can either be paid by the
Landlord or the Tenant, depending on the drafting of the covenant
SUB G.R: We have two types;
1.
RECURRING
RATES: This is usually paid by the tenant [it includes rates of service used by
the Tenant; tenement rate, water rate, electricity bill]
2.
NON-RECURRING
RATE: This is usually paid by the Landlord [it includes rates not involving
direct tenant use like buying of electric poles.
SO,
MAIN RULE: A large number of the rates and
outgoings are created and levied by the municipal authority where a property is
located. The parties who will pay the rates depend on how the covenant is
drafted.
DRAFT 1:
‘’The
Tenant covenants to pay all existing rates, taxes, and outgoings in respect of
the demised property/ premise’’
IMPLICATION:
In this draft the Tenant is to pay only rates and outgoings that was in
existence of the lease not new rates and outgoings coming into existence after
the lease agreement.
EXCEPTION
1: In SMITH V SMITH: The court held that where the new rate is of
the same specie of the former rate, the tenant would pay. E.G NEPA BILL now
PHCN BILL
EXCEPTION
2: Where the new law provides that it is the occupier that will pay for it, the
Tenant would pay.
DRAFT 2:
‘’The Tenant covenants to pay all taxes and
outgoings, payable now or as they subsequently arise in respect of the demised
premises’’
IMPLICATION:
This is still not the ideal draft, in that the Landlord is still responsible to
pay owners rates.
DRAFT 3:
‘’The Tenant
covenants to pay all taxes, rates and outgoings, payable now or as they
subsequently arise in respect of the demised property/premises whether payable
by the owner or the occupier’’
IMPLICATION:
Perfect draft for the Landlord.
However, IN LAGOS STATE, if this covenants is
silent;
By
Virtue of SECTION 7(2) LAGOS STATE
TENANCY LAW 2011 provides that;
‘’the tenant shall pay all existing
and future rates and charges not payable by the Landlord by law’’ (OCCUPIER
RATES).
By
Virtue of SECTION 8(2) LAGOS STATE
TENANCY LAW 2011 provides that;
‘’the Landlord shall pay all rates
and charges as stipulated by law’’ (OWNERS RATES)
REMEDIES
FOR BREACH OF THIS COVENANT
1.
An
action to recover the outgoings and rates accrued
2.
An
action for damages
USER COVENANTS
(COVENANT TO USE)
GENERAL RULE: When the covenant is silent, the tenant can make use of the demised
property for any lawful purposes even if it is for a use different from the
purpose originally contemplated. DAWODU
V ODULAJA
DRAFTING: it must be clear and unambiguous. For example;
‘’the lessee covenants to make use
of the premises and to permit the premises to be used for the purpose of
[residence/ commerce/ agriculture] only.
FUNCTIONS
OF THE CLAUSE
1.
Protect
Neighbors
2.
Prevent
its use for illegal or immoral purpose
3.
Protect
the reversionary interest
REMEDIES
FOR THE BREACH
1.
Action
for injunction to prevent a contrary use
2.
Action
for damages to compensate for the misuse of the premises or breach of the
covenants
3.
Action
for forfeiture
COVENANTS
TO REPAIR
GENERAL RULE: Unless otherwise stated in the
covenants both the lessor and lessee are responsible for repair
SUB G.R
1: The Lessor is responsible for the repair of STRUCTURAL PARTS[ roofs, drains,
etc] and COMMON PARTS [Staircase, Lift etc]
SUB G.R
2: The Lessee is responsible for the repair of the INTERIOR PARTS [Windows,
doors, keys]
FURTHERMORE,
when the covenants is not included in the
Lease Agreement, by implied covenants the Lessee is under the obligation to use
the premises in a TENANT-LIKE manner, to make fair tenantable repairs and not
to waste on the premises
In other
words the Lessee is required to keep the premises in substantially the same
condition as they were at the time of letting out the premises.
IN
DRAFTING the covenant it must contain;
1.
Who
to undertake the repair
2.
What
is to be repaired
And
Must consider also;
1.
Age
of the property
2.
Locality
CASES
AND PRINCIPLES
IN OKE V SALAKO: the court held that the tenant cannot however
withhold the rent on the basis that the landlord refuses to repair
In DEMUREN V PLASTIC
MANUFACTURING CO LTD: In this instant case, the Tenant relinquished the demised
property before the end of the contractual term because the lessor had failed
to repair.
The
court held that he was nevertheless liable to pay rent for the remaining term
of the tenancy.
N.B: IN LAGOS IF THE COVENANT IS SILENCE;
By
virtue of SECTION 7(3) LAGOS STATE TENANCY
LAW 2011;
‘’The Tenant shall keep the premises in good and
tenantable repair, reasonable were
and tear excepted’’
N.B: The word ‘’reasonable wear and
tear excepted’’ simply means that the lessee is relieved from liability for any
state of disrepair so long as the disrepairs results from a reasonable use of
premises and the effects of the natural elements.
By
virtue of SECTION 8(6) LAGOS STATE
TENANCY LAW;
‘’ The Landlord shall effects repairs and maintain the
external and common parts of the premises’’
COVENANTS AGAINST ASSIGNMENT AND
SUB-LETTING
GENERAL RULE: When the covenants is silent, a tenant has the unrestricted right to
assign his tenancy or to create sub-lease of such tenancy. INUWADA V BRYNE, KEEVES V DEAN
N.B PLS NOTE THAT
THIS IS NOT APPLICABLE IN LAGOS, BY VIRTUE OF SECTION 7(6) Lagos State Tenancy
Law;
‘The Tenant shall
not assign or sublet any part of the premises without the written consent of
the landlord’’
N.B:
The draft shows how the covenants can be construed, it can either be Absolute,
Qualified or Balanced;
ABSOLUTE DRAFT
‘’The Lessee
covenants not to assign, sublet or otherwise part with possession of the
demised premises or any part of it’’
IMPLICATION:
The lessee cannot sublet the premises in such a case. Where he applies to the
lessor for permission to sublet, the lessor can refuse without stating any
reasons for the refusal.
But
please note that, where the Tenant permits another person to use the premises
e.g a Licensee to use the premises, this does not amount to breach of the
covenant not to assign or sublet. This was affirmed in the case ISHOLA WILLIAMS V HAMMOND PROJECTS.
QUALIFIED/CONDITIONAL
DRAFT
‘’The Lessee covenants not to assign, sublet,
charge or part with the possession of the premises or any part without the
consent of the Landlord’’
IMPLICATION:
The draft makes the consent to be subjective, it still not the perfect draft.
BALANCED/IDEAL DRAFT
‘’The Lessee covenants not to assign, sublet,
or otherwise part with the possession of the demised premises without the
written consent of the Landlord, such consent not to be unreasonably withheld
in the case of a responsible and respectable person’’
However,
the grounds for refusal are;
1.
Personality
of the proposed Sub-tenant or Under-lessee
2.
The
use or purpose for which the Under-lessee requires the premises.
RULES
ON CONSENT
RULE 1: THE
LANDLORD MUST NOT UNREASONABLY WITHHOLD THE CONSENT.
IN HOULDER BROTHERS
AND CO LTD V GIBBS: In
the instant case, the Landlord refused to give consent on the ground that if he
assignment went ahead it was likely that the assignee would terminate its
tenancy of the adjoining property which he would difficulty re-letting
HELD: The court in discussing the
matter which a Landlord may take into account when refusing to consent to an assignment
of a lease;
It must be something affecting the subject
matter of the contract which forms the relationship between the Landlord and
the Tenant and it must be something wholly extraneous and completely dissociated
from the subject matter of the contract.
FURTHERMORE,
IN ALAKIJA V JOHN HOLT: The Supreme court held that where the consent
to an assignment is unreasonably withheld, the result is that the tenant is at
liberty to assign without the Landlord’s consent.
RULE 2: CONSENT
CANNOT BE WITHDRAWN ONCE GIVEN
IN OBASUYI V
MANDILS: In the
instant case the Landlord consented and later sought to withdraw his consent when
he knew that the defendant were subletting the premises for a much greater
amount than he received. HELD: this was not allowed.
LASTLY,
IN LISBOA V FAWA: The court held that when the landlord accepts
rents even after discovering the breach of the covenant not to assign or
sublet, he is deemed to have waived his right to enforce the covenant.
TO
BE CONTINUED!!!!!!!!!!
PRAY
HARD
EAT HARD
READ HARD
REST HARD.............READ AND SHARE........DON'T GIVE UP.
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