This article seeks to explain the legal effect of covid-19 crisis as it relates to the expiration of house rent of students that live off-campus. The article argues that the number of months lived outside the house as a result of the pandemic should not count in the determination of the expiration of rent as the doctrine of frustration applies. It concludes by recommending that the school management and student bodies should take steps to negotiate with landlords to make some concessions if not total as regards payment.
The doctrine of frustration
First of all, there seems to be a consensus amongst legal minds that this global pandemic would act as a frustration or force majeure. A frustration is a situation that arises that makes the fulfilment of a contractual obligation impossible. As an illustration, if I enter a contract with you to deliver a particular drug to you on a certain date, but the government makes the sale of such drug illegal before the date of delivery, that would be a frustration which would relieve me of my obligation to deliver the drug to you and I’m bound to refund your money. In legal language, we say such a contract has been discharged by frustration. (You can read up my standard article on this same topic and find out the difference between frustration and force majeure
http://lawaxis360degree.com/2020/05/26/students-v-landlords-a-legal-assessment-of-the-covid-19-crisis-in-relation-to-expiration-of-rents-akinkunmi-abolade/) my latest YouTube video (https://youtu.be/g4bn2Shq4Go)
Applicability of the doctrine of frustration in this case
That being said, let us address the main issue for discussion which is whether covid-19 can act as frustration and grant a student the right to extend the expiration of his rent for the number of months he didn’t live there as a result of this pandemic. In OAU, there are mainly 2 categories of off-campus accommodation: Maintenance and rented houses. Both are practically the same in terms of payment and expiration of rent. They are paid annually and not on the school calendar sessional basis.
There are quite a number of instances that can amount to frustration. The instances that are relevant in this case are statutory impossibility/subsequent legal changes and cancellation by an unexpected event. (MALIK v. KADURA FURNITURE & CARPETS CO. LTD (2016) LPELR-CA/K/409/2014)
Now, the question is whether the two instances highlighted above would fit into this case.
All students were ordered to go home on the 22nd of March, 2020 by the university management. This was in line with the federal government and NUC directive that all universities should be closed. The federal government legally backed up its action by making reference to the Quarantine Act and Infectious Disease Act. Hence, it can be said that the operation of law made it impossible to take benefit of the rent, thus fitting into the first instance. Also, Covid-19 is a pandemic which nobody foresaw. Hence, it can be said that this pandemic fits into the second instance. From the foregoing, it can be said the doctrine of frustration applies.
The fact that the furniture of the students remains in the house and the key in possession of the students does not prevent the doctrine of frustration from applying to a case of lease. (EMMANUEL OSELOKA ARAKA V MONIER CONSTRUCTION CO (NIG) LTD (1978) LPELR-SC.314/1976) In this particular case, the Court held that the landlord could not recover rents payment from the tenants on the basis that the Biafran war amounted to frustration. In this OAU situation, students have been unable to live in the house for up to 2 months now with no particular date of resumption in sight. It is submitted that students are not bound to pay for their rents for the duration of this global pandemic.
A likely argument that can be raised by landlords is that the customary terms of the rent is that students always pay even if they don’t live there. Vacation periods when students are not on campus is a good example. Students still pay the rent notwithstanding. However, this argument is bound to fail. This is because vacation periods do not amount to frustration on lease agreements. Legal change and unforseen circumstances which are instances of frustration as highlighted above do not apply to vacation periods. However, in this case, it has been established that the elements of the doctrine of frustration is applicable in this instance. Hence, it is submitted that relying on vacation periods as a defence for landlords would fail.
This essay has argued that the law is on your side if you don’t want to pay for your rents for the duration of the pandemic. However, you and I both know that that may not totally be practical. I doubt any student wants to sue their landlord. You might just be sent packing and we both know that there are other students ready to take possession of the house at a higher fee. The best way to resolve this is that students and the university management should work together to negotiate with landlords to reach concessions in this regard. This is also a time for all students to unite and demand that the university management acts without complicity.
LLB 5, Faculty of Law,
Obafemi Awolowo University