BACKGROUND
Structured due diligence and credit assessments may become one of the emerging issues in Nigeria’s landlord-tenant relationship. Recent judgments of Nigerian appellate courts are likely to widen or constrict the relational contract between tenants and landlords across cities in Nigeria.
- longer-term relationship;
- substantial degree of commitment from both parties; and
- high degree of communication and cooperation between the parties.
All three incidents appear very present in a landlord-tenant relationship. Travers Smith notes that a court’s finding that a contract is relational could have significant impact on how the contract may be interpreted.
Making it more difficult to rely on a very narrow, strict construction, and may mean that obligations of good faith are implied, with the result that parties should avoid conduct which reasonable and honest business people would regard as commercially unacceptable.
This implies that the finding that a contract is relational is capable of affecting the cannon of interpretation that a court of law would adopt in respect of interpreting obligations of parties to the contract, in law or in contract.
Without given in to what is expressed in Nigeria as academic argument, we dare to opine that tenancy agreements in Nigeria are relational contracts, although the words relational contract may not be found in judicial pronouncements in Nigeria.
In REV. JOSEPH O. TOFIJI BANKOLE & ANOR v. MR. OLAYINKA OLADITAN (for himself and on behalf of the Executors of the late Chief Oladipo Oladitan) (2022) LPELR-56502, the court of appeal found that a validly served writ of summon cures any defects in an otherwise defective statutory notice.
The court’s reasoning within the context of the judgment was a borderline invocation of English law court’s principle of relational contract – a defective statutory notice is curable by deducting the notice period from the duration of the writ of summons.
Notice to quit (quit notice) and seven days owner’s intention to recover possession (7 days’ notice) are statutory notices in respect of tenancy agreements in Nigeria. Its durations are subject to contract or applicable notice period under respective tenancy laws across States in Nigeria.
We had noted that s. 25 (1), Lagos State tenancy law, 2011 (the “Lagos tenancy law”), requires landlord to prove grounds of possession because it provides that “unless the agreement expressly stipulates otherwise, the court shall have powers to make an order for possession upon proof of any of the following grounds:
- arrears of rent;
- substantial repairs
- breach of any covenants or agreement;
- where premises is required by landlord for personal use; or
- where the premises requires substantial repair.
Assuming the decision in BANKOLE & ANOR v. OLADITAN (supra) is a ready-made cure for any defective statutory notice in Nigeria, a landlord that seeks possession from tenant in any tenancy contract under Lagos State tenancy law, 2011, unless the contract excludes s. 25, Lagos tenancy law, is required to prove grounds for possession.
TENANTS’ CREDIBILITY
Section 7, Credit Reporting Act, 2017 (the “CRA”), allows a landlord (henceforth any use of landlords include lessor in a lease agreement) to seek credit information from a Credit Bureau for a permissible purpose. Permissible purpose under the CRA include assessing the credit worthiness of a prospective tenant in any lease or tenancy in Nigeria.
All credit information relating to tenants and other data subjects enjoy privacy, confidentiality and protection. Credit information means information bearing on tenants’ credit worthiness, credit standing or capacity, and to tenants’ history and profile with regard to credit, assets and any financial obligations, including tenants’ demographic data and such other information that may aid landlords in letting a property.
Landlords that seek to conduct due diligence (DD) on prospective tenant or to request a sitting tenant to authorize search at any credit bureau in Nigeria ought to obtain the tenant’s or prospective tenant’s consent in writing.
CRA forbids a landlord to disclose a tenant’s credit information to a Credit Bureau without tenant’s prior written consent. Generally, a credit information user ought to have a data exchange agreement with credit bureau as a pre-condition to assess any credit information.
This appears to pose a procedural challenge to landlords or small firms that conduct due diligence in respect of tenancy or leases. CRA authorizes credit bureau to provide credit information to any credit information user (landlords) who have not executed a data exchange agreement with it if landlords have obtained written consent of tenant or lessee in any form and substance satisfactory to the Credit Bureau.
CRA: CREDIBILITY AND RENT RECOVERY TOOL
Legal practitioners, landlords, property agents and other stakeholders need to aggressively utilize the CRA to ensure credit assessment and ranking of tenants and lessees in Nigeria.
What is required is a simple review of tenancy agreements for any sitting tenants by inserting a credit search and report consent clause in the contract including that of new tenants.
Credit information search may be twofold. Credit assessment or whitelisting of tenants whose rents are due and unpaid at the credit bureau. In addition to any agreed liquidated damages that apply to unpaid rents.
Any such whitelisting prevents the tenant from borrowing money or accessing credits and guaranteeing any credit related transactions in respect of any credit lending company in Nigeria. A veritable tool for prompt payment of rent.
Whitelisting enables prospective landlords to determine whether to let or lease its property to a prospective tenant, whether a natural or artificial persons.
Should this be aggressively promoted, recalcitrant rent defaulters could be prevented from running for any public office from year 2023, another cycle of Nigeria’s election year.
CONCLUSION
As Nigerian appellate courts make inroads into what has been considered a shield for the ordinary tenant against callous landlords, the practice of running credit information checks or credit reports on tenants and prospective tenants may become easy and ready-to-us tools for tenants’ creditworthiness and rent recovery.
It is our professional hope that this practice will become widespread in Nigeria, culminating in a more organized credit assessment and reporting practice. A business prudence measure in a civilized society.
Written consent of a prospective tenant is not difficult to obtain. Any attendant costs of credit information checks or reports may be deducted from or aggregated to agency fees payable to agents who do no more than introduce a prospective tenant without any due diligence.
