Introduction
A right to property in the context of real property, therefore, is simply a right to own or exercise title over interests in land and perform the obligations connected with the exercise of the right. The right to property as used here is different from the right of access to property or accommodation. To this extent, the right to property has to do with ownership or title, whereas the right of access to the property, or right of access to accommodation, is the right to lawfully enter into possession and occupy or use another person’s property for a specific purpose and for an agreed period of time, with or without exclusive possession. It is an ability possessed by the person entering into possession or granted by some authorities to such a person to enter into possession.
The right to property is one of the basic human rights and is further enshrined in the constitutions of the countries of the world as a fundamental right. The classical social contractarian’s regard this right as one of the three cardinal natural rights (otherwise human rights), being the right to life, liberty, and property (shelter).
Human rights are interdependent, indivisible, and interrelated. In other words, the violation of the right to property may affect the enjoyment of a wide range of other human rights and vice versa. Compulsory acquisitions and forced evictions can affect the enjoyment of several other rights, including the rights to life, liberty, education, self-realization (development), and security.
To meet the property rights of the citizens as well as the right of access to the property, the government has had to formulate various rent control mechanisms and housing policies. Rent control is a standard ceiling set by the government on the rent that a landlord can charge. It is the means by which the government places a maximum price on what landlords may charge tenants, and it is usually a price set below that which would have otherwise prevailed. It also allows a landlord to set rent freely when letting to a new tenant but subject to the tenant’s right to accept or not, as well as prevent the landlord from raising the rent or ejecting the tenant arbitrarily (Basum, K. and Emerson, P. Efficiency Pricing, Tenancy Rent Control, and Monopolistic Landlords).
Rent control is also a collection of laws regulating the periodicity or quantum at which a landlord can raise the rent. It is usually an intervention through measures put in place by the government with a view to protecting the citizens in the course of securing accommodation by putting a cap on the maximum rent payable on all classes of residential properties. Such measures include legislation to check incessant and arbitrary increases in rent brought about by the interplay of the forces of demand and supply of residential accommodation.
Right of Access to Property
We have explained the right of access to the property earlier as the right to lawfully enter into the property of another for a defined period of time. This entry may be coupled with exclusive possession or not, and maybe for a fee or not. If it is coupled with exclusive possession together with an interest in the land, then the possession of the premises is a tenancy, but if there is no exclusive possession and no interest in the land, or the privity of estate between the parties, then it is a mere licence [Errington v. Errington (1952) 1 All ER 149 at 155]. The key factor that distinguishes such entry from trespassing is lawful occupation.
Our property jurisprudence has found the basis of tenancy in the concept of lawful occupation. Thus, where a person enters a property lawfully, that is, with the consent of the owner, who could be the true owner or any person appointed by the true owner to act for and on its behalf, and such an appointment could be by way of a Power of Attorney, the person is presumed a tenant. To this extent, the concept of exclusive possession and privity of the estate seems not to feature as factors for defining a tenant. Many writers have criticized our courts’ position because it creates confusion about the concept of tenancy, making the distinction between tenancy and license blurred and practically irrelevant. Where this concept of lawful occupation is extended to a tolerated trespasser, then a complex relationship is thereby created between the former landlord and the former tenant. The term “tolerated trespasser” is used to describe a person who was previously a secured tenant (i.e. a tenant who can only be evicted with a legal reason or a court order) or an assured tenant (i.e. a statutory tenant whose tenancy has been properly determined and a court order for possession has been obtained against) but nonetheless remains in occupation in certain circumstances accepted or put up with by the former landlord. This situation could arise where the erstwhile tenant continues to remain in possession, apparently due to the tenant’s refusal or stubbornness to peacefully yield up possession in compliance with the Orders of the Court or as a result of a compromise with the landlord, either for a grace period to enable the tenant to move to alternative accommodation or for the purpose of gradual liquidation of arrears of rent together with regular payment of mesne profits over a period of time (usually a grace period). Where the court, upon making a possession order, appoints a date for the tenant to deliver up possession, such a tenant should not be considered a tolerated trespasser but remain a statutory tenant from the date of the order to the appointed date for delivery of possession. This is because the tenant is still protected by the order of the court and the tenant cannot be removed until the appointed date has passed. Thereafter, where he refuses to yield possession, he becomes a trespasser, and wherewith the consent of the landlord, a situation of tolerated trespass arises, and such a person can be considered to be in “lawful occupation” [Burrow v. Brent London Borough Council (1996) 4 All ER. 577]. In view of the fact that lawful occupation could be a basis for considering a person’s possession as a tenancy, a situation of a tenancy could therefore be created for a tolerated trespasser. In Landlord and Tenant Law in Nigeria, Principles, and Practice, Professor I. O. Smith, SAN argued that to avoid such a complex situation, the parties should enter into a new agreement defining their relationship to meet the parties’ reasonable expectations. This suggestion, though valid and accepted by the writer, is limited as it could only apply where both parties are substantially at peace with each other. However, where the former tenant is not willing to enter into such an agreement and the former landlord willy-nilly acquiesces to the former tenant remaining in possession but with a strong desire to evict him, as for example, if the former tenant is a dreaded person or the former landlord is either afraid to execute the possession order or has no means to execute the same, what then would be the remedy of the former landlord, and would the court do justice to the parties by regarding this subsequent relationship as a tenancy? I think not. There is no intention to create a relationship between landlord and tenant and, as such, the former tenant is a tolerated trespasser and our courts should consider his status as such based on the circumstances of the matter.
Thus, the right of access to the property can be considered as the ability to lawfully enter into possession of a property. It would only be effectual and contingent upon the availability of other factors, such as the payment of rent. It is a possessory right of the individual which can be given effect where the individual is able to satisfy the terms and conditions of the tenancy. As a result, the exercise of this right is not without limitations, as it can be limited by proper tenancy determination by serving the relevant statutory notice(s). This right, however, must be respected by the landlord throughout the duration of the tenancy. This is usually by way of a grant of exclusive possession, peaceful possession, and quiet enjoyment, amongst others. This right is not a fundamental right, although arguably it could be considered an adjunct to the right to property, which will be considered below.
Right to Property
The right to property is one of the basic natural rights of man. It is the right to own, acquire, and enjoy the ownership of property. It is a fundamental right as guaranteed by the Constitution of the Federal Republic of Nigeria, 1999, as amended (“the Constitution”). Section 43 of the Constitution provides as follows:
Subject to the provisions of this constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.
An owner of the property has the right to use the property as the person deems fit. The right to use is incidental to the right of ownership. One such use is the letting of the property to other people (tenants, lessees, or licensees) on payment of rent or fee. Every landlord takes great interest in the rents accruing to him from property let out to a tenant. In fact, of even greater commercial importance to a landlord is the rent review clause contained in the tenancy agreement, which provides for the way and manner in which the rents payable by the tenant can be reviewed during the term of the tenancy. Payment of rent is a fundamental duty of the tenant, as it is the payment of rent that entitles the tenant to the enjoyment of exclusive and peaceable possession of the premises during the period of the tenancy.
Ideally, the quantum of rent payable is a fallout of the tenancy agreement between the landlord and the tenant, being a consequence of negotiation between the parties and the principle of freedom of contract. This is usually not the case, as the bargaining powers of both parties are not the same. So, in most cases, the landlord fixes the rent, and the same is usually without negotiation with the prospective tenant. The landlord would always want to obtain the highest value for the property by way of rent and thus maximize his returns. The right to enjoy, use, and profit from the property is a logical extension of the right to property. The exercise of this right seemed to be without limit until the end of the Second World War when government intervention in housing matters became prominent due to factors like shortage of accommodation, population explosion, and rural-urban migration. [Smith, I.O., “Rent Control in Lagos State: An Evaluation of the Rent Control Provisions Under the Rent Control and Recovery of Residential Premises Edict, 1997,” Nigerian Law and Practice Journal (1998) vol 2].
Also serving as a catalyst to the interventions by the government was the fact that, from the early 20th century, the government began to place emphasis on socio-economic rights, which was a departure from the initial focus on civil and political rights.
Government intervention and human rights considerations
Housing rights fell under the categorization of human rights as economic, social, and cultural rights, also known as security-oriented rights or second-generation rights. It might seem strange that a subject such as housing would constitute an issue of human rights. Incidentally, while cases bothering on the terms and conditions of a tenancy are purely contractual, the interpretation of such terms and conditions may be influenced by human rights considerations. Also, the process of the exercise of judicial discretion by the court in eviction matters may generate judicial considerations resulting from human rights perspectives. However, a look at national and international laws, as well as the significance of having a secured place to live for human dignity, physical and mental health, and overall quality of life, reveals some of the human rights implications of housing.
Following the establishment of the United Nations at the end of the Second World War and the adoption of the Universal Declaration of Human Rights, which recognized both civil and political rights as well as economic, social, and cultural rights, the recognition of the latter became widespread [Chegwe, E. “Right to Housing in the Context of Nigerian Law and Human Rights Practice” in AGORA International Journal of Juridical Sciences].
The various rent control legislations are therefore attempts by the government to intervene in housing matters as a form of social security and welfare mechanism to cushion the effect of unavailability and shortage of accommodation and adequate housing which the government is supposed to provide. It is also to protect the tenant from the arbitrariness of the landlord and secure the term of the tenancy.
The intervention of the government in regulating the relationship between landlord and tenant is usually by way of price control, which is a form of the limit imposed by the government on how much rent can be charged on a property, particularly on residential accommodation. The limit represents the maximum rent, which in most cases is at a figure below the open market price value of such accommodation units [Oni, Ajibola, & Oloyede, “Rent Control and Residential Property Values in Lagos State, Nigeria” in the Journal of Land Use and Development Studies].
The rationale for government intervention and justification for the same has been questioned in some quarters as violating the right to property and the right to the enjoyment of the fruits of ownership of the property. On the other hand, it is argued that government intervention is necessary for the purpose of ensuring that tenants are not at the mercy of shylock landlords, regulating arbitrary rent increases, unlawful ejection of tenants, and preventing lengthy and unending litigation between landlords and tenants. Some landlords increase rent on an annual basis and at high rates, and some make demands for advance rent of up to two years, even from a sitting tenant, irrespective of the condition of the premises, which may be unsanitary, and in some cases, have fallen into a state of disrepair. This ugly trend necessitated the regulation of tenancies through the promulgation of various rent control and recovery of premises edicts which stipulate, inter alia, specific methods to be adopted in determining residential property values and the rents payable on such properties.
The regulation of this right is further compounded by the various tenancy laws of various states. For example, the Tenancy Law of Lagos State, which is applicable to areas covered by the law, prohibits the collection of advance rent for a period of more than one year and the payment of unreasonable rent. Section 4 of the law makes it a criminal offense to collect rent in excess of one year in advance. Any landlord who demands and collects rent from any tenant who offers and pays rent in excess of one year in advance will be guilty of an offence and punishable by a fine of N100,000.00 or imprisonment for 3 months. The justification for making the tenant (who inevitably is the party who pays) similarly liable is, however, questionable. Our society today is riddled with a myriad of housing-related problems, which has dictated the government’s approach to addressing the issues by way of laws and housing policies.
In practice, however, these laws would serve little purpose or be less important to the contracting parties when entering into a landlord-tenant relationship.This is because even the statutes recognise agreements freely entered by the parties as binding and enforceable. Thus, the law usually makes its provisions subject to the tenancy agreement. To this extent, landlords could easily take advantage of the law by including in the tenancy agreements those clauses that best suit them or their needs.
Also, the tenancy law of Lagos State, which criminalises payment of rent in advance of more than one year, seems to make both the landlord and tenant culpable. This situation would create a compromise between the landlord (who had received advanced rent for more than one year) and the tenant (who had paid such rent), as both the person who receives and the one who pays are liable.
In view of the foregoing, we have proffered recommendations for the purpose of achieving a more humane exercise of the right to property and its corollary right of access to property.
Recommendations
Housing, as a basic amenity, is indispensable to the average man. In view of the essential nature of housing to mankind and its very essence as a natural right, it is, however, worrisome that this right does not enjoy the same ranking as civil and political rights. To that end, there is a need for constitutional reform in the form of an amendment to Section 6(6)(c) of the Constitution, which expressly limits judicial powers on any issues concerning the conformity, compliance, or enforcement of the Fundamental Objectives and Directive Principles of State Policy, also known as Chapter II rights, by making them justiciable, particularly in the areas of housing and education.
Sequel to the above, appropriate legislative, administrative, budgetary, and judicial measures should be put in place to give effect to the provision of Section 16(2) of the Constitution, which makes express provision for the right to housing.
The States of the Federation should refrain from interfering with the enjoyment of the right to property in the form of forced evictions, demolitions, imposition of discriminatory practices (for example, section 1, subsection 3 of the Lagos Tenancy Law, which excludes certain areas including Apapa, Ikeja, GRA, Ikoyi, and Victoria Island from its applicability, has been arguably regarded as discriminatory), denial of compensation in case of compulsory or forced acquisition, etc. Laws specifically addressing these should be enacted by the National Assembly and enforced.
Private actors like landlords, property developers, and corporations should comply with human rights standards related to the right to housing in going about their businesses. This will ensure that the citizens’ right to access to the property is not necessarily curtailed by capitalist landlords and developers.
Conclusion
The relationship between landlord and tenant is both founded on contract and property law. It is one that requires the meeting of the reasonable expectations of the parties. People’s right to access property and the right to property are crucial aspects of human existence as their realization is fundamental to human capital development, economic stability, quality health, and the overall development and health of the nation.
The Nigerian government must take a cue from other nations and provide the socio-economic and political environment adequate for the realization of this right, as well as provide a legislative or judicial framework to prevent violations of this right in whatever forms they may take. It is hoped that this will have a positive impact on the right to property, as well as the associated right of access to the property, and Nigerian housing policies.
