Whether or not a tenant can rent or sublet part of the rented apartment is an issue that often arises between landlord and tenants and most tenants are not aware of the underlining issues. The content of your tenancy agreement or deed of lease is the major determinant as to whether or not a tenant can rent part of the rented apartment. Sadly, even when the landlord issues a tenancy agreement, most tenants just sign the documents without taking a proper look at them and without taking the agreement to a lawyer to read and advise them…
It will be illegal to sublet without the consent of the landlord, if a covenant not to sublet is already included in the tenancy agreement or deed of lease. It is paramount that before you sublet your apartment or house, you confirm that your tenancy, license or lease allows you to legally do this. Most times, tenancy, license or lease does not allow subletting and any waiver is at the discretion of the landlord. Generally the provisions of the law as regards a tenant renting part of the rented apartment or subletting in all jurisdictions in Nigeria is similar.
First let’s look at who is a tenant, what is a tenancy agreement/lease and license.
A tenant is a person who occupies land or property rented from a landlord and is subject to payment of rent. Under the Recovery of Premises Act 1999 (Abuja) a tenant is defined to include any person occupying premises, whether on payment of rent or otherwise, but does not include a person occupying premises under a bona fide claim to be the owner of the premises. Lagos State tenancy law defines a tenant to include a sub-tenant or any person occupying any premises whether by payment of rent or howsoever or by operation of law and not persons unlawfully occupying any premises under a bona fide claim to be the owner. A tenancy agreement/ lease is a written agreement between a landlord and a tenant that gives the tenant an exclusive interest in a property for a period less than three years while a lease is for more than three years . A license is permission from the owner to a licensee to do something on the owner’s property for more than three years , however it does not grant any interest in the property.
By subletting, you merely add another layer of responsibility and accountability to the already existing lease or tenancy. The sub lessee has to go through the same process you went through before renting the apartment/house and the sub lessee may be required to make provision for a damage deposit. If you have a lease that allows you to sublet your apartment or house, you still need to follow the provisions and due process by informing your landlord before it happens.
If for whatever reason, you need to move out of your apartment temporarily and do not want to pay rent while you are gone, subletting your apartment to someone else for a specific period of time is an option. A sublet is meant to be a temporary arrangement where a subtenant returns the apartment to the original tenant before the original tenancy ends. In the event you sublet your apartment, you, as the original tenant, you remain responsible to the landlord for the apartment and your subtenant must abide by all the terms of the lease. If the subtenant refuses to pay the rent, your landlord can take action against you for non-payment of rent. To sublet, you must be a tenant with a lease. If your lease does not mention or prohibit subletting, you are free to do so. Most leases require consent before you can sublet. If a landlord refuses to give you permission to sublet your apartment, you cannot do so.
Every tenant before signing a tenancy agreement should carefully read and understand in details the provisions of his agreement documents. The service of a legal practitioner should be sought to help in interpreting the contents of the agreement as ignorance of the law is not an excuse. Having a tenancy agreement is very important, the agreement basically sets out the terms of your tenancy and it is necessary that it is written
The Lagos State Tenancy Law  was formerly known as Rent control and recovery of residential premises law vol.7 laws of Lagos State 2003. The law clearly states the relationship between Landlords and tenants in Lagos. Landlord-tenant law governs the rental of property. The law stated in section 7 obliges tenants to comply with the tenancy agreement which includes rent payment in time and right manner, landlord consent before subletting, alterations and structural damage in any part of the building.
The law recognizes different types of tenants, they are listed as follows:
a. The tenant by effluxion of time
b. The yearly/monthly tenant
c. The Tenant at Sufferance
d. The tenant at Will
- THE TENANT BY EFFLUXION OF TIME:
This tenant comes in to the property for a stated period, in his agreement it states the stipulated period. It is usually stated as ‘some years certain’ or words to that effect. His agreement may entitle him to pay rent periodically but he may not be given any notices before the end of the period, save where he does not pay his rent or breaks other tenant’s covenants.He is expected to hand over the key not later than that date and the property in the perfect condition it is handed over to him. He is not there because the landlord agrees and he is there even when the landlord disagrees. If he wishes to carry on as a tenant they agree to a year by year payment of rent he becomes an annual tenant. He cannot sublet unless the landlord consents.
- THE YEAR BY YEAR TENANT:
The annual tenant pays his rent yearly. As such he is entitled to stay on the premises for as long as he pays the rent yearly and to be given quiet enjoyment of the premises. His duty is to make sure that the premises are in a tenantable condition at all times. He cannot sublet without the consent of the landlord.
- TENANT AT SUFFERANC:
A tenancy at sufferance arises where a tenant, having entered into a valid tenancy, holds over without the landlord’s assent or dissent. Such a tenant differs from a trespasser in that his original entry was lawful, and from a tenant at will in that his tenancy exists without the landlord’s consent.A tenancy at sufferance canaries only by operation of law, and not by express grant, for it assumes an absence of agreement between landlord and tenant and of course there can be no claim for rent as such, for rent is a service which depends upon a proper tenure by consent. He cannot sublet.
- THE TENANT AT WILL:
A tenant who has permission to stay on the property past the expiration of the rental agreement. Also, a tenant who occupies rental property with the landlord’s consent and makes rent payments without a written lease is called a tenant-at-will. A tenant at will is typically required to continue rent payments as long as they are permitted to remain. A tenant as will has permission and not an agreement. Most tenants, who have no agreement, will be categorized as tenants at will. He cannot sublet.
- THE TRESPASSER:
Is the man who comes into someone’s property without any permission and he really has no protection in law.
A licensee is a person who has permission from the owner to do somethingon the owner’s property. The licensee cannot transfer a license from the licensee to another person.
As already stated if the situation is such that your lease does not allow for subletting, you can discuss the issue with your landlord who has the power to review your lease to allow for subletting. If your lease does not mention whether it allows for subletting or not, you still need to discuss with your landlord before you sublet your house or apartment. You are not in any other way allowed to sublet your rented apartment of property without the consent of the landlord unless you have a long lease and it must not be excluded in your lease agreement.