Introduction
In many rental arrangements, a tenant may decide to allow another person to occupy part or all of the rented property. This arrangement is commonly referred to as sub-tenancy, and the person who occupies the property under the tenant is called a sub-tenant.
Sub-tenancy is fairly common in Nigeria, particularly in urban areas where tenants sometimes share apartments or rent out portions of their apartments to others. However, this arrangement comes with legal implications that both tenants and landlords should be aware of.
Who Is a Sub-Tenant?
A sub-tenant is a person who occupies a property through a tenant rather than directly through the landlord.
In this situation:
The landlord rents the property to the original tenant (often called the head tenant). The original tenant then rents part or all of the property to another person. The person renting from the tenant becomes the sub-tenant.
Legally, the sub-tenant’s right to occupy the property usually depends on the tenant’s own tenancy.
Position of the Law on Sub-Tenants
The courts in Nigeria have recognised that a sub-tenant is not without protection under the law.
In OKAFOR & LEMNA CONSTRUCTION CO. LTD & ANOR v. OKOLI (2018) LPELR-46001(CA), the Court of Appeal held that:
“It has been decided that a subtenant is protected whether there is a privity of contract or not, attornment of tenancy or not. A subtenant is for the purposes of ejectment, a tenant and the provision of the laws must be followed before ejecting him.……”
Per MUHAMMED LAWAL SHUAIBU, JCA
(Pp. 10–12, Paras. B–D)
This decision highlights an important legal principle: a sub-tenant cannot simply be removed from the property without following the legal procedure for recovery of possession, even where the landlord does not have a direct contractual relationship with the sub-tenant.
Sub-Tenancy and the Consent of the Landlord
In many tenancy agreements, there is a clause stating that the tenant must not sublet the property without the landlord’s consent.
Where such a clause exists:
The tenant must obtain permission from the landlord before creating a sub-tenancy. Subletting without consent may amount to a breach of the tenancy agreement.
Where there is no written tenancy agreement, the conduct of the parties and the circumstances of the tenancy may determine whether sub-tenancy is acceptable.
Relationship Between the Landlord and the Sub-Tenant
Generally, the sub-tenant does not have a direct contractual relationship with the landlord.
Instead:
The landlord’s relationship is with the original tenant. The sub-tenant’s relationship is with the tenant who sublet the property.
This means that the landlord usually enforces the tenancy agreement against the tenant rather than the sub-tenant. However, the law still requires proper legal steps before a sub-tenant can be removed from the property.
What Happens When the Main Tenancy Ends?
Because a sub-tenancy depends on the main tenancy, the sub-tenant’s right to occupy the property may also come to an end when the main tenancy ends.
For example:
If the landlord lawfully terminates the tenant’s tenancy, The sub-tenant may also be required to vacate the property.
However, the proper legal procedure for recovery of possession must still be followed before ejectment.
Can a Sub-Tenant Be Evicted through Self-help?
A sub-tenant cannot ordinarily be removed from the property through self-help.
In Nigeria, recovery of possession generally requires:
A. Proper service of applicable statutory notices, and
B. A court order for possession.
Locking out occupants, removing their belongings, or using force to eject them may amount to unlawful eviction.
Common Issues That Arise in Sub-Tenancy
Disputes relating to sub-tenancy often arise from situations such as:
A. Subletting without the landlord’s permission
B. Disagreements between the tenant and sub-tenant over rent
C. Damage to the property by a sub-tenant
D. Attempted eviction without proper legal process
For this reason, it is usually advisable that sub-tenancy arrangements be clearly documented.
Key Points to Remember
1. A sub-tenant occupies property through a tenant rather than directly through the landlord.
2. The sub-tenant’s rights often depend on the tenant’s own tenancy.
3. Even without direct privity of contract with the landlord, the law recognises and protects the sub-tenant’s possession.
4. Recovery of possession must follow the proper legal process.
Disclaimer:
This article is provided for general informational purposes only and does not constitute legal advice. Laws relating to tenancy and recovery of possession may vary depending on the applicable state laws and the specific facts of each case. Readers who require legal advice regarding a particular situation should consult a qualified legal practitioner.
If you found this helpful, please share it on social media — it only takes a click.