Can tenant sue landlord for trespass?
By Bamidele Kolawole
A landlord is one who lets part or whole of his premises to one called a tenant with the payment of consideration otherwise called, rent. While a tenant on the other hand is one who is let into a premises to use for a period of time with the payment of rent.
Generally the answer is no. However, there are circumstances that can necessitate a tenant to sue his landlord for trespass.
A tenancy agreement imposes rights and creates obligations on both parties.
A tenant is entitled to a number of rights which include the right to occupy rented property in peace.
When a tenant pays his rent and is issued a receipt, it is expected that the landlord will by extension be granting him the right to peaceful enjoyment of the property.
Once this is done, he determines the entrance, usage and safety of same and can sue for trespass against any trespassers; strangers, the landlord and his agents. See S. 3,5,6 and 9 Tenancy Law of Lagos State.
Instances where a tenant can sue a landlord for trespass and or damages include but are not limited to:
1. Inadequate eviction: Locking out a tenant and physically throwing out their property or assaulting them.
A tenant when unable to pay rent as at when due is still a lawful tenant and must be treated with respect. A tenant inadequately evicted due to inability to pay rent has a right to sue for damages.
2. Inadequate notice to quit.
3. Interference with tenants privacy: a landlord coming into the tenant’s property to use same without express permission as the tenant is by law entitled to exclusive possession and can sue for trespass.
A landlord has no right to decide who visits the tenant except where a visitor constitutes nuisance.
4. Inhabitable condition of premises.
5. Repair of premises: it is the duty of the landlord to carry out all major repairs in the property (external and structural); damaged roofs, cracked/collapsed walls, while the tenant can carry out minor interior repairs.
The relationship between a landlord and his tenant is consensual in nature. This brings to mind the question: who is a landlord? A landlord is one who lets part or whole of his premises to one called a tenant with the payment of consideration otherwise called, rent.
A tenant on the other hand is one who is let into a premises to use for a period of time with the payment of rent.
The moment a premises is let out to a tenant, the premises so let is taken over by the tenant.
He is expected to enjoy the possession of the premises, while the tenant should not do anything that is contrary to the reversionary interest of the landlord as the owner of the premises let to the tenant.
Once the tenant takes possession of the premises, the landlord is automatically restrained from intruding into the premises without the permission of the tenant. He has no legal right to enter into the premises he lets out to his tenant anyhow, otherwise, he may be liable for trespass.
The tenant can only allow landlord into the premises just to inspect the structures with a mutual understanding between the parties.
Where the landlord trespasses into the premises of the premises let to the tenant, the tenant can sue the landlord for doing so, the landlord being the owner of the reversion, notwithstanding. The landlord only has the reversionary interest in the premises and not in possession.
Anybody who is in possession of property or premises, has the right to sue any trespasser including the landlord who has the reversionary interest in the premises.
It is pertinent to state that possession is 90% ownership. It is very strong to the extent that the law presumes that whoever is in possession of a property, is the owner. It is when the other party proves that he has a better title that possession can be displaced.
Generally speaking, a landlord can be sued by his tenant where the landlord does something that is inconsistent with the quiet and peaceable enjoyment of the premises he occupies.
The law has stipulated the procedures to comply with in the eviction of a tenant, and where the landlord unilaterally and forcefully ejects a tenant from his property, he would be said to have ran foul of the law, as same would amount to “self help”, and where this happens, the tenant shall be entitled to institute an action for trespass and in addition seek damages (monetary compensation) for the injury occasioned by the trespass committed by such landlord.
Courts have thus, warned landlords to be wary of resorting to self help in their quest to eject tenants from their property.
In the case of Akinkugbe v Ewulum Holdings (Nig) Ltd & Anor (2008) LPELR-346 (SC), the Supreme Court held that “a Landlord who resorts to self help in a bid to recover possession of premises tenanted runs foul of the law and he is liable in damages”
Similarly, the Court of Appeal Per Helen Ogunwumiju, JCA, (as he then was) in the case of Ndiel & Anor v Eze (2016) LPELR-42122 (CA), @ P 17, PARAS C-D) held that: “it is the law that, and it has been reiterated almost to irritation that recovery of premises must be done by due process of law. Any other form of recovery is unlawful.”
The Law, that is, the Rent Control and Recovery of Premises Law, has however, prescribed procedures which a landlord is obliged to comply with in a bid to lawfully eject a tenant.
Section 18 (1) of the Rent Control and Recovery of Premises Law, Cap 133, Vol. 3 of the Laws of Ondo State, 2006, provides that the Landlord shall apply to the “Rent Tribunal” within jurisdiction where the property is situate for the issuance of a summons to evict the tenant.
Pursuant to Section 16(1) & 17 of the Rent Control and Recovery of Premises Law Cap 133, Vol 3, Laws of Ondo State of Nigeria, 2006, the Landlord shall prior to the date of the termination of the subsisting tenancy serve the tenant with: (a) a week’s notice where it is a tenancy-at-will or a weekly tenancy. (b) a month’s notice where it is monthly tenancy (c) a quarter’s (three months’) notice where it is a quarterly (three-months)tenancy and (d) half a year’s (six months’) notice in a yearly tenancy.
Where the tenant having been served with the requisite notices, fails to comply with same, the Landlord shall by virtue of Section 15 of the law serve the tenant a Notice of Owner’s intention to apply to recover possession which the tenant is mandated to comply with within a period of seven days from the date of service of the said notice on the tenant, and where the tenant fails to deliver up possession within the stipulated period of seven (7) days after the service of the said notice on him/her, the right of the Landlord to sue for recovery of the said premises arises.
It is however, disheartening to find out that most landlords forcefully evict the tenants personally or by proxy by engaging the Police to harass/embarrass tenants in civil disputes of this nature.
In the case of Okafor v LEMNA Construction Co. Ltd & ANOR LPELR-46001 (CA) the Court of Appeal held “A landlord has not the right to invade premises in the occupation of a tenant, and cast his goods and belongings away even for safe keeping without his consent. Whereas, in the present case, a landlord unilaterally enters into the premises of his tenant; he has committed an act of trespass”
Summarily, the law only empowers the (Court) “Rent Tribunal” and not the Police or the Landlord to evict a tenant where he/she refuses or neglects to vacate the property after the expiration of his tenancy and/or service of the requisite notices on the tenant.
ENJOY THIS IMAGINARY STORY!
B, (the landlord) let out his three-bedroom apartment and it’s appurtenances at Plot 10 Block D Layout, Alagbaka, Akure to A, (the tenant)at a yearly rent #600,000. At the expiration of the tenancy on December 31, 2022, A couldn’t renew his tenancy due to financial constraint. Miffed by A’s refusal to renew his rent and/or vacate the said property, B having failed to serve the requisite notices or approach the court opted to in fact engaged the Police to enhance speedy recovery of his arrears of rent on September 1, 2023.
He claimed that he wouldn’t go to court because it would take longer than expected. He successfully evicted the A unlawfully, and A later sought redress in court by suing B for trespass and claiming damages against B. The court found B liable and awarded damages against B in the sum of #2,000,000.
Allegation of trespass can be raised by someone who is lawfully in possession to the Exclusion of any unauthorized others. A tenant-landlord relationship is strictly guided by statutes and the tenancy contract.
It is expected that, under the tenancy Agreement/Contract,the Tenant shall have and enjoy undisturb possession of the apartment and every space incidental to the agreement and covered by the rent for the specific period.
It is very common for landlords to demand ingress during a valid Period of Tenancy Agreement, in order to inspect or assess deterioration,but it is in my opinion, not quite proper, as it constitutes infringement on the tenant’s Privacy and it equally derogate the tenant’s right of exclusive undisturbed Possession under the Tenancy Agreement as may have been clearly expressed in the terms and conditions of the Agreement.
So, What may warrants a Landlord’s unpermitted entrance to a tenanted Apartment,Land, Premises etc? Many often than not,Landlord will want to assert Authority, Right and or Power of ownership for one reason or the other. At anytime when a Landlord in attempt to exercise Ownership,and it turns out to be to the detriment and in conflict with the Tenant’s Right of exclusive undisturbed Possession, the relevant Laws can be invoked to Estopped the Landlord from going against Earlier agreement to respect Boundaries during a valid Tenancy.
However, if the Tenant is a Licensee,he may not have such Privilege of exclusive undisturbed Possession and for that reason won’t be able to legally raise eyebrows or make issue out of the Landlord’s free ingress and egress.
A Tenant must first understand the type of Tenancy agreement he has with the Landlord, and equally knows the rights that accrue to him or her under the Tenancy agreement, before such tenant can make a case of trespass against the Landlord.
A Lawful tenant can Sue the Landlord for trespass,depending on the nature of Tenancy he or she entered into with the Landlord.
If a landlord enters a rental property without authorization, a tenant in Nigeria may file a trespass suit against them.
The tenant’s right to peaceful enjoyment of the property may be infringed upon, or the landlord may enter the property without permission or notice.
The Tenancy Law of the state in which the property is situated is the applicable law governing landlord-tenant relationships in Nigeria.
Since every state in Nigeria has a different tenancy law, it’s critical to consult the state’s particular legislation.
According to Nigerian land law, whoever has a title or a long-term or temporary right to possession may file a lawsuit to keep trespassers from interfering with their rights.
Ordinarily, possession refers to having actual physical control over a piece of land. Ownership is frequently demonstrated by possession.
It covers employment on a physical level as well as employment through agents, licenses, tenants, and other means.
As a result, the following people may file a trespass lawsuit;An owner of landed property.
A person claiming in trust for the owner such as a caretaker, agent, attorney, manager, trustee, the person in loco parentis, servant, etcetera.Tenants.A holder of reversionary interest.
A sub-tenant living under a valid sublease.A purchaser who has not yet taken possession.
A trespasser or adverse possessor whose trespass has matured into ownership.
What is required to maintain an action for trespass to land, is actual possession.
Possession is a sufficient right to maintain a claim for trespass to land.Obaseki JSC defined possession as follows in Ekpan v. Uyo: “Possession of a parcel of land means the occupation or physical control of the land either personally or through an agent or servant.”Therefore, a person has a landed property when he:Has physical possession or custody; or has some form of control over the land, through another person, for instance, a caretaker, tenant, or other agent.
In an action for trespass, the onus is on the plaintiff to show that he was in de facto possession (i.e. possession in fact) of the land at the material time. In Wuta-Ofiei v. Danquah, the judicial committee of the Privy Council held that to establish possession, a claimant didn’t need to take some active steps concerning the land such as enclosing the land or cultivating it.
The type of conduct which indicates possession must vary with the type of land. In the case of vacant and unenclosed land which indicates possession must vary with the type of land which can be done on the land to indicate possession moreover the slightest amount of possession would be sufficient to entitle the person who is so in possession to recover as against a mere trespasser.
Where both the plaintiff and defendant claim to have land, the court will resolve the doubt in favour of the one who can prove title, that is the one who has the “right to possess”.As IDIGBE J stated in Efana v. Adekunle;If there is a dispute as to which of two persons is in possession, the law presumes that the person having title to the land is in possession.
In the well-known case of Jones v. Chapman, Mauce J, observed that… if there are two persons in a field each assessing that the field is his, and each doing something in assertion of the right of possession, and … if the question is, which of those two is in actual possession, the answer is that the persons who has the title is in possession and the other is a trespass.
Furthermore, a plaintiff in actual possession of land cannot maintain an action on trespass against one who can show that he has a better title or right to possession i.e. it is a defense to an action for trespass that the defendant has a right to possession of the land, or acted under authority of the person having such right.
However, it is a well-settled rule that a defendant who is sued for trespass to land cannot plead the jus tertii, i.e. he cannot justify his trespass by showing that a 3rd party has a better title or right to possession than the plaintiff who is in defacto possession, unless the defendant entered under the authority or as the agent of the 3rd party.
When a tenant pays his rent and is issued a receipt, it is expected that the landlord will by extension, grant him the right to peaceful enjoyment of the property.
Once this is done, he determines the entrance, usage, and safety and can even sue for trespass against any trespasser; strangers, the landlord, and his agents.
In doing justice to this question, it is imperative to explain what trespass means in a simplified manner, that is, in a layman’s language. Trespass according to Merriam Webster Dictionary means to enter unlawfully upon the land of another.
A truth that needs to be acknowledged by landlords is that when you rent out an apartment of your own, that is, you give a property to a tenant, at that point the property is yours but you do not have the right of entry at will, it has to be with permission, otherwise, the landlord will be liable of trespass.
Trespass is as much a tort as it is a crime in Nigeria. In the case of Entick V. Carrington, it was held that every invasion of private property, be it so minute is a trespass.
Apart from entering into land, anything done that interferes with a person’s right to possession amounts to trespass. The lack of motive on the part of the trespasser will not vitiate an action for trespass, thus, it will not be a defence that he was trespassing or that he honestly believed that the property/premises belonged to him or that he did not know that by entering into the land, he would be interfering with the rights of another person.
NB: When a person abuses the purpose for which he has been permitted to be on a land, he becomes a trespasser ab initio. Thus, where a right to enter is abused it may be a trespass.
A tenant is an individual or entity that occupies and uses land, a building, or real property that is owned by another individual or entity.
In the context of renting a property; a tenant is the party who has the right to use the property in exchange for the payment of rent to the landlord. The tenant has among other rights; the right to privacy, that is, his right must not be encroached or violated by any other person including the landlord except by invitation, otherwise, such entrance into the apartment becomes unlawful and is tantamount to trespass.
A Landlord is a person who owns a building or a piece of land and rents it to another party. The other party is the tenant. We use the term Landlady when the owner of the property is a woman.
However, we can use ‘landlord’ for both male and female property owners. The landlord is responsible for most of the maintenance and repairs to the property.
The tenant lives in the place and pays the rent. For the landlord and tenant relationship to exist, there must be a contract which is referred to as a rental agreement.
The right of a landlord to own property is entrenched in Section 43 of the 1999 Constitution of the Federal republic of Nigeria but however, the Land Use Act in Section 7 disallows or disqualifies a minor to own property in Nigeria; unless somebody who is 21 years old, so in simplicity not everyone can own a property in Nigeria.
However, nobody is contesting the ownership of the property with the landlord but there is another occupant in the said apartment, who has paid the agreed amount of money to the landlord for the use of the apartment, the moment that amount of money is collected by either the landlord or his agent, he cannot just enter the apartment as he likes, it has to be by invitation.
Therefore, a tenant can sue his landlord, if he enters into his apartment without authorization or permission, this becomes an intrusion to his privacy which is equally a violation of his right to liberty.