The Need For A Landlord With No Written Tenancy To Have A Power Of Attorney By Hameed Ajibola Jimoh Esq. – TheNigerialawyer

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 (2^nd 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).

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