Tenancy: Need For Landlord With No Written Tenancy To Have Power Of Attorney
By: Hameed Ajibola Jimoh Esq.
It is a principle of contract that a contract can either be in writing or oral. Tenancy is a relationship that is created as a result of the contract between the landlord and the tenant over a particular premises or property. Sometimes (if not many), not all tenancies have a written agreement or contract but based on oral agreement or mutual understanding of both the landlord and the tenant over the said premises. In this kind of circumstance, this paper views that in a situation where a landlord dies (where there is no written tenancy agreement) and has no written Will (which expresses and appoints who are his executors) it is likely to be uneasy for anyone other than him to continue or to take over the property from the tenant already in possession without a letter of administration issued in respect of the said property. Therefore, this paper encourages a landlord who does not have a written tenancy agreement (and who has not written a Will) to have a power of attorney issued to someone else to act for him and on his behalf.
First and foremost, it is common to have the introductory part of a tenancy agreement expressed and clearly stated to not only include the landlord or the tenant but inclusive of their respective ‘heir’, ‘agent’, ‘assignor’, etc. which is the need to enable another person (a third party) to act in the absence or presence of the two contracting parties (the absence too might be as a result of death or ordinary absence). The introductory part of such tenancy agreement usually has as follows ‘THIS TENANCY AGREEMENT is made this … day of …, BETWEEN … of …, (herein after referred to as the ‘Landlord’ which expression shall where the context so admits include: his heirs, personal representatives, executors, trustees and assigns) of the ONE PART AND … of… (herein after referred to as the ‘Tenant’) which expression shall where the context so admits include: his heirs, personal representatives, executors, trustees, successors-in title and assigns) of the OTHER PART.’. So, where there is a written tenancy, and it is expressed in the above expression, then, any other person (named in the agreement) can act in the absence of either of the contracting person.
Furthermore, a power of attorney is thus defined as a document which may be under seal that authorizes a person to act for another person as his agent. The person who donates the power is called the ‘donor’ (Principal) while the person to whom it is donated is called ‘the donee’ (Attorney). See: Ude v Nwara (1993) 2 NWLR (PT. 278) 647; (1993) 2 SCNJ, 47. Also see: Property Law Practice in Nigeria (2nd Edition), Y.Y, Dadem, Jos University Press Limited, Jos, Plateau, 2012, at page 45. Also, the power of attorney does not transfer the title of the donor to the donee. See: Ude v Nwara (supra). Among those circumstances that require a power of attorney being issued to another person as stated by Y.Y. Dadem (op.cit) at page 48 are: (i) unavailability of the donor either as a result of being physically away from the properties being sought to be dealt with or being engaged in busy schedules which make it impossible for the donor of the power to devote time to handle the properties. (ii) ill- health or some physical impairment making it difficult for the donor to handle his affairs in respect of the properties. (iii) when expert skills of the done is required such as where a donor donates to an Estate Agent or Solicitor the responsibilities to put tenants in possession, collect rent, revise rent, sue for rent and evict tenants on a property. Thus too, as stated by Y.Y. Dadem (op. cit) at page 61, that a power of attorney is said to be revoked where the donor dies, becomes bankrupt or of unsound mind. The exception to this is that once the power is coupled with interest or it is fixed for a period, the death, lunacy, bankruptcy and unsoundness of mind of the donor will not affect the power and went further to state at pages: 62 and 63 while stating when a power of attorney is irrevocable and how a third party could be protected with dealings with the donee that ‘where the power is expressed to be for a fixed period (whether given for valuable consideration or not), it is irrevocable. The fixed period should not exceed one year from the date the instrument is created. In that case, the donee is entitled to exercise the powers within that fixed term and the power is irrevocable within the period (regardless of the death, disability or bankruptcy of the donor). See: page 62 of the book., and ‘where the power is given for a specified period, the power shall not be revoked during that period and anything done by the donee within that period will be regarded as the valid act of the donor and the purchaser will not be prejudiced by notice during or after the fixed term for anything done within that fixed term’. Citing: Section 47(1) of the Conveyance Act 1881 and section 142(1) of the Property and Conveyance Law, 1959- herien after referred to as PCL (Laws applicable to and regulates property transaction in most of the States of the Former Western Region of Nigeria). See: Y.Y. Dadem (op.cit.) at page 63. Also see: section 144 of the PCL. Also see: Section 9 of the Conveyance Act 1882-herein after referred to as the CA- (the CA applies as laws regulating property transaction as law in States that are yet to enact their property laws, notably some States of the former Northern and Eastern Regions of Nigeria, inclusive of the Federal Capital Territory-Abuja). From the above quotations underlined, the message in my humble view and submission, is that even where the donor dies (and even has no Will where an executor of his estate is appointed to deal with the said property), the donee has been conferred the locus to act pursuant to the Power of Attorney (within the one year that the donor dies) and to evict the tenant (else, no one will have the power to evict the tenant or claim any rent, or serve any required notice, etc., except the legal representatives (or administrators) of the deceased donor) after the letter of administration must have been sought and granted or where a preservative order has been granted appointing an officer by the Court to manage the deceased’s property for instance, pursuant to Order 62 Rule 2 of the High Court of Federal Capital Territory- Abuja (Civil Procedure) Rules, 2018. This situation of no legal representatives and no power of attorney will likely afford a mischievous tenant to continue to hold possession of the property as no one will be able to sue him much more so that upon the death of the donor, the said property falls on the tenant as a resulting trust he being the trustee and the trustee can sue anyone for title except the owner or his legal representatives in this case. So, the power of attorney should (in my humble view) always be reviewed every year to accommodate validity so far the donor lives. Therefore, I am of the legal view, that a landlord who has no written tenancy agreement should issue a power of attorney to another person to act for him which will be valid and renewable every year or for such landlord to write a Will appointing executors of his estate in order to cover this vacuum that is likely to be created as a result of his death.
Nevertheless, I must state that this position (and the landlord) being considered in this paper only relates to the landlord who is subject to the Wills Law or Wills Act and not a landlord that is subject to either Islamic Law of Inheritance or the Customary Law as for instance, under the Islamic Law of Succession or Inheritance, the said property falls or devolves on the heirs of the deceased landlord upon the landlord’s death and the heirs (or any of them) have the power to claim such property. See: Quran 4: 11-12. Also, under the Customary Laws, inheritance is governed by the customs of the deceased landlord. So, those who are the heirs become entitled to the said property in accordance with the customs of the deceased that governed him while he was alive. These Islamic Law and the Customary Law have been exempted from application by Section 1(3) of the Administration of Estates Law of Lagos State. Also see: for instance Section 1 of the Wills Law of Lagos State (and Wills Act).
Finally, it is my advice that a landlord who is subject to the Wills Act or the Wills Law (by virtue of his having conducted his marriage under the Marriage Act or where he is not married or has no child under the said Marriage Act) should ensure a written tenancy agreement or in the absence, he should prepare a Will appointing his executors of his estates, else, a smart and dubious or mischievous tenant is likely to aim at taking over his property and no one will be able to claim same where there is no letter of administration sought and granted in respect of the property as such situations happen today in real life where some tenants have become the owner of the property of their landlords (much more so that the procedures for the grant of the letter of administration is a very rigorous or strict ones).