For
a lease to be valid, the following essentials must be present;
1.
It must contain the word demise;
2.
It is a demise of premises or property
for exclusive use and occupation;
3.
In consideration, rent is usually but
not necessarily paid by the user of the property;
4.
The agreement must be complete and the
parties may agree on specific terms to regulate their relationship, these terms
being often referred to as covenants either on the lessor’s or lessee’s
part;
5.
There has to be a proper identification
of the lessor and the lessee including the subject matter of the
lease, that is the property;
6.
The relationship must be for a fixed
period;
7.
The lease must have a certain or
ascertainable commencement date and duration: Osho v. Foreign Finance Corp.
(1991) 1 NWLR (Pt. 157) 193 and Anyanwu v. Uzowuaka (2009) All FWLR (Pt.
499) 441;
8.
The lease must be certain as to its
duration: the case of Lace v. Chantler (1948) 1 All ER 19 where
the lease was stated to be for a the duration of a war, the court holding
that, that lease is null and void because of uncertainty of duration is instructive;
9. It must have granted exclusive possession to
the lessee;
10. The lease must be created in the
proper manner, thus where the lease is for a term above three years, it must be
created by deed.
A
discussion of some of these essentials is important.
a.
Exclusive Possession
Exclusive possession is one of the most
important essentials of a lease.
Exclusive possession in leases is
central to any leasehold relationship. It is the right to exclude all other
persons including the landlord from the demised premises and it is what
distinguishes a lease from a licence: Earington v. Earington (1951) 1 All ER
149. It is also relevant for the purpose of maintaining action in trespass.
Whereas a tenant can maintain action in trespass against anybody including the
landlord, a licencee cannot: Chukuma v. Shell Petroleum (1993) 4 NWLR (Pt.
112) 36.
b.
Parties
Parties to a lease must have capacity
to contract the lease agreement. The parties may be natural or juristic; in
either case, they must be capable of suing and being sued. The owner of the
property who makes the grant is the lessor or landlord, while the person who
takes over the exclusive use of the demised premises is the lessee or tenant.
Where the lessor is a lady, she is often referred to as a landlady. A landlord
or landlady does not mean that the person is the owner of the estate, only that
he has the right to grant use of the premises to another. This is because it is
not the title to the property that is being conveyed but only the right to the
use and occupation of the property.
c. Property
The property in a lease must be
described. The property here is the land or any interest in land that is
demised. It may be for the purpose of residence or commerce. The parties must
be ad idem that what they intend to do is to create a leasehold relationship
with the right to reversion of the property to the lessor. The importance of
this agreement is that apart from being an estate, a leasehold interest or
relationship is viewed as a contract and an essential element of a contract is
the complete agreement of the parties to its terms.
d.
Duration of Term
A „certain term‟ is very important in leases. This
means that a lease must grant a definite term; the duration of which is made up
of the commencement date and the expiration date and these must exist. It is
advisable that the commencement and expiration dates be expressly stated. There
must be a certain beginning and a certain end. The lease cannot enure in
perpetuity: Lace v Chantler (1944) KB 364 applies.
e.
Commencement Date
Where the commencement of a lease is
explicitly stated in the lease, no
problem arises on its date of commencement. If
the commencement date can also be
reasonably inferred from the words used in the instrument creating the lease, the lease could
be said to have a commencement date. In the cases of Okechukwu v
Onuoha and Bosah v Oji, the question arose as to whether leases that
had no commencement date, but which were said to commence on “the day
the Onitsha Local Government Council issued to the lessees a certificate of occupancy
in respect of the premises”, had valid commencement dates? The court answered
the question in the affirmative. The court reasoned that the commencement date
which was dependent upon the occurrence of a future contingency (issuance of a
certificate of occupancy) was valid and the lease became absolute and
enforceable the moment the event in question occurred.
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