David Ifedilinwoke
Editor’s Note: It was 2010. I was in my mid-twenties practicing law in a private law firm in Aba, Nigeria. On this day, I had just finished a hearing in court and was getting my gown and wig ready to head towards the door when some young men approached me. I recognized them as prison inmates who had been granted freedom from the day’s proceedings; the Judge had dismissed the case against them after their attorney’s request for same on ground of lack of diligent prosecution. The young men who looked rather benign for armed robbery–the crime they were charged with– told me they had a friend in prison who needed an attorney. I wrote down their friend’s details and promised to pay him a visit in prison.
In the days that followed, I visited Aba prison and interviewed the inmate. I also obtained some records from the court which showed he didn’t commit a violent crime. A judge did grant him bail the day he was arraigned months before but he did not have a way to contact his family to furnish bail. The police who arrested him took away his cell phone thus preventing him from having access to the contacts on his phone.
David came into the case when I was brainstorming the best way to secure the client’s release. Because the inmate did not have family to pay his legal fees, David and I took the case pro bono. We were first and second year associates who though we’d read a lot of law books in law school, knew little about the practice of law. Dave offered to use his own money to get the services of a bondsman to secure our client’s freedom even though there was no guarantee he would get his money back. After further research, however, we realized that since the police had literally abandoned the case, we could ask the court to dismiss the case against our client entirely for want of diligent prosecution, thus rendering the issue of bail moot.
We made the request to the court and the case against our client was dismissed. Dave and I, two young lawyers who knew next to nothing about the law, got a man who had been behind bars for months (or even one year, I don’t remember now) his freedom. I still remember the scene at our office the day he was released. The newly-released inmate clutched plastic bags that contained his clothes tightly to his chest while our boss, the amazing Bertram Faotu, congratulated us on our success. I think it was David who also gave the young man transport fare to go back to his home, Calabar, a City in one of the South-South States of Nigeria.
It’s been about six years since this case and I have since worked in a law firm where we win hundreds of thousands of dollars for our clients. But no case has ever provided the same joy as that of using my training as a lawyer and privilege as a Christian (the Christian part requires an entire post to do it justice; Christ did play a role in that case) to set a prisoner free.
As part of my series to showcase young entrepreneurs and professionals, I interviewed David to catch up on his current work as a property consultant lawyer in Aba, Abia State, Nigeria, hoping to enlighten Aba residents of what they should know about landlord and tenant laws in Abia State
Please tell us about your professional background.
I graduated from University of Calabar with a Law degree in 2004 and thereafter proceeded to Nigerian Law School. I was admitted to Nigerian Bar in 2009 and have been in active practice since then with Eleuthera Chambers, Aba, a law firm that was founded by a former Deputy Director-General of Nigerian Law School, Ernest Ojukwu. Eleuthera Chambers specializes in Election Petitions, Oil and Gas Law, Environmental Pollution, Commercial Litigation, Property Management, Civil Litigation, Arbitration, Human Rights cases, Incorporation of Companies with the Corporate Affairs Commission (CAC) and Registering of Titles Deed at the Land Registry. The firm provides a full array of legal services.
You, in particular, specialize in real estate law and property management. What type of services does your law firm provide to landlords when hired as a property manager?
When hired as a property manager/consultant, we help a prospective landlord with purchasing of a property. If a landlord wants to sell a property, we can help find buyers, all the while ensuring the transaction is done in accordance with the law. When a landlord hires our firm to manage his rental property, depending on the extent of the services the landlord desires we provide for him, we can draft rental agreements, issue notices to tenants, collect rents and remit same to landlord, evict non-paying tenants or tenants violating the terms of the lease etc.
About what percentage of the rents generated from a property can a landlord expect to pay as fees to a property management attorney?
A Landlord may choose to pay his property management attorney 10% of the rent generated from the property or the attorney may, on the instruction of the landlord, have the tenants pay the attorney 10% of the rent in addition to the rent. In the second scenario, the landlord has nothing to lose as he gets his entire rent while the tenant bears the burden of paying for the professional management of the property. So the landlord dictates how a property management attorney in Aba gets paid.
So with the wide range of services you provide, an out-of-state landlord need not worry about the maintenance of his property once he puts you in charge?
Yes, because we basically do everything he would do if he were present. If a landlord is not resident in Aba, he can direct the tenants to contact us directly when there is an emergency. Regardless of whether the landlord is resident in Aba or not, once we take up management of a property, we direct tenants to communicate directly with us and not with our clients in all matters relating to their tenancy at the property. We undertake the maintenance of the property subject to the authority to manage given to us by the Landlord.
Why should landlords have rental agreements with their tenants?
Landlord tenancy agreement is vital in management of a property because it determines the nature of the tenancy, for example, whether it is a yearly tenancy or a month-to-month tenancy. When such terms are not expressly provided, it makes it is hard to define the nature of the relationship between the parties and this because a problem when time comes to evict a non-paying tenant. In essence, tenancy agreement governs the landlord-tenant relationship, stipulating their rights and obligations.
Do the terms of a rental agreement trump the provisions of the law where there is a conflict?
No. A tenancy agreement does not trump the provision of the law where the law is established to protect a tenant, like the requirement for mandatory statutory notices before evicting a tenant. As to those matters the law does not cover or covers but allows parties to make agreements contradicting the law, then the rental agreement is applicable in such cases. Law allows Landlord and tenant to agree on the period of Quit Notice in the event of eviction.
Some landlords resort to self-help to remove tenants who are not paying rent. Is there a remedy for a tenant who is evicted by his landlord without following due process?
Any tenant removed through self-help is advised to approach court for redress. The Law requires a landlord to follow due process before evicting a tenant. The court will award him damages accordingly.
In California where I practice now, the law requires a landlord to make repairs even when a tenant is in occupation. In other words, a landlord has an obligation to provide a habitable dwelling throughout the life of the tenancy. Does a landlord have a duty to repair under Abia State laws?
Yes. Landlords under the Abia State Recovery of Premises And Rent Control Law have a duty to repair their building and such is usually included in tenancy agreements.
What are the grounds for evicting a tenant in Abia State?
A tenant can be lawfully evicted in Abia State for breaching any of the covenants of the tenancy agreement; for non-payment of rent; if a landlord wants to make use of the premises; or if the landlord wants to make a major repair that will affect the building.
Evicting a tenant is quite technical. I remember a supreme court case where a landlord could not legally evict a tenant after five attempts. What are the steps a landlord must take before he can lawfully evict a tenant?
The procedure involves service of Statutory Notices on the tenant–the length of the notice depends on the nature of the tenancy; Service of Summons to the tenant; Presenting the case in court including fielding in witnesses to prove the case. After obtaining judgment in favour of the Landlord, then the bailiffs will be contacted to levy execution.
If a landlord appoints you as a property consultant, do you still charge him for legal services if you have to evict a tenant?
If we are to evict tenant from a property we are managing, we do not charge professional fees.The landlord only has to foot the bill for expenses incurred like filing fees, cost of execution, etc.
What defenses may a tenant have to an eviction proceeding?
Because a tenant is usually clearly in default before a landlord start eviction proceedings and a tenant cannot lie about such obvious fact, a tenant’s lawyer will usually only capitalize on irregularities, defects or mistakes on the face of the notices and the suit filed by the landlords lawyer to get the suit struck out.
Some landlords get suspicious notices from people claiming to be government agents asking for property taxes. How can a landlord know genuine tax demands from the fake ones?
Every landlord should send such notices to a lawyer who upon due inquiry will instruct the landlord whether to make a payment or not, and obtain clearance from the government upon such payment as proof of payment.
Your practice also extends to perfecting titles for land sale transactions. Please can you walk us though the legal process of buying a land to make sure good title is passed?
When a client consults us to acquire a property for him, we first conduct local search at the Land Registry in Umuahia to ensure the land is unencumbered, that is, that there is no other person or entity laying claim to the land. We also visit the property physically and look at the beacon numbers to compare it with the one at the Title Deed. We also make word of mouth inquiries regarding ownership of the property from people living close to the property.
If the land is a communal land, we make sure that the head of the community and principal members of the community consent to the sale. If title is clear, then we draw up the deed, have the parties and witnesses sign it, and then register the property in our client’s name.
How much can a client buying a land in Abia State expect to pay his lawyer for helping him comply with all the legal requirements for buying land?
Lawyers in Aba charge various rates, 5% on the average. Besides the lawyer’s fees, the buyer also has to pay the government for the registration and perfection of the title. In Abia State, Nigeria, how much the buyer pays for registration is dependent on the location and worth of the property.
Aba residents complain of poor infrastructure; what has the NBA Aba Branch done to ensure the executive arm of the government is accountable to the people of Abia State?
NBA Aba is trying its best and the present Government is now improving in terms of roads construction and payment of salaries to civil servants etc.
Recently, a friend in Lagos told me that the landlord of a real commercial property she was leasing wanted to evict her just after two years of her establishing a business on the property and after she has built an impressive client base. Meanwhile, the landlord collected two years rent from her upfront when she moved in. When I researched, I discovered it was actually a crime in most part of Lagos for a landlord to collect two years rent in advance. Does Abia State have rent control laws?
Yes, Abia State has Recovery of Premises and Rent Control Law but does not make two years advance payment a crime.
In 2014, You petitioned Abia Sate Governor about two undergraduates who were arrested by a Vigilante Group but whose whereabouts could not be accounted for neither by the police, the vigilante group, nor the army whom the vigilante first claimed they transferred the boys to. How did that case end?
Unfortunately, the boys were never found after investigation so the case was referred to the Director of Public Prosecutions. The perpetrators are now facing charges for kidnapping and murder.
Thank you for enlightening us on these issues. Some people may have further questions for you after reading this. Please, how may they contact you?
Our office is located at Hospital Road. My phone number is +234 803 596 3898. Our website is http://www.ofy-lawyers.com/. And we get emails through eleutherachambers@yahoo.com
Thank you very much for granting this interview, Dave. I know how busy you are.
You are welcome.
Disclaimer: The Above is given for general information only and does not constitute a legal advice. Please consult your lawyer if you have any legal problem as no two cases are the same. Moreover, laws change constantly and only your lawyer can advise you of the current law at any given time.
Anne Mmeje 