Section 34 Mortgage and Property Law of Lagos State

Section 34 of the Mortgage and Property Law of Lagos State 2010 is about Power of mortgagor and mortgage in possession to accept surrender of leases. It provides as follows:

(1) For the purposes only of enabling a lease authorized under the last preceding section, or under any agreement made pursuant to that section, or by the mortgage deed (in this section referred to as an authorized lease) to be granted , a mortgagor of land while in possession shall, as against every encumbrancer, have, by virtue of this law, power to accept from time to time a surrender of any lease of the mortgaged land or any part thereof comprised in the lease, and, on a surrender of the lease so far as it comprises part only of the land leased, the rent may be appointed.

(2) For the same purpose, a mortgagee of land while in possession shall, as against all prior or other encumbrancers, if any, and as against the mortgagor, have virtue of this law, power to accept from time to time any such surrender as mentioned.

(3) On a surrender of part of the land leased, the original lease may be varied, provided that the lease when varied would have been valid as an authorized
lease if granted by the person accepting the surrender; and on a surrender and the making if a new or other lease, whether for the same or for any extended or other term, and whether subject or not to be same or to any other covenants, provisions or conditions, the value of the lessee’s interest in the lease surrendered may, subject to the provisions or conditions, the value of the lessee’s interest In the lease surrendered may, subject to the provisions of this sections, be taken into account in determination of the amount of the rent to be reserved , and of the nature of the covenants, provisions, and conditions to be inserted in the new or other lease.

(4) Where any consideration for the surrender, other than an agreement to accept an authorized lease is given by or behalf of the lease to or on behalf the person accepting the surrender, noting in this section authorizes a surrender to a mortgagor without the consent of the encumbrancers, or authorizes a surrender to a second or subsequent encumbrances without the consent of every prior
encumbrancer.

(5) No surrender shall by virtue of this section be rendered valid unless –
(a) an authorized lease is granted of the whole of land comprised in the surrender to take effect in possession immediately or within one month after the date of the surrender;

(b) the term certain or other I interest granted by the new lease is not less in duration that the unexpired term or interest which would have been subsisting under the original lease if that lease had not been surrendered and
(c) where the whole of the land originally lease has been surrendered, the rent reserved by the new lease is not less than the rent which would have been
payable under the original lease if it had not be surrendered or where party only o the land has been surrendered, the aggregate rents respectively remaining payable or reserved under the original lease and new lease are not less that the rent which would been payable the original lease of no partial surrender had been accepted.

(6) A contract to make or accept a surrender under this section may be enforced by or against every person on whom the surrender, if completed would be binding

(7) This section applies only if and as far as contrary intention is not expressed by the mortgagor and mortgagee in mortgagee deed, or otherwise in writing, and shall have effect subject to the terms of the mortgage deed or of such writing and to the provisions therein contained,

(8) The provisions of this section referring to a lease shall be construed to extend and apply, as far as circumstances admit, to any letting and to an agreement, whether in writing or not, for leasing or letting.

(9) The mortgagor and mortgagee may, by agreement in writing, whether or not contained in the mortgage deed, reserve or confer on the mortgagor
or mortgagee, or both any further or other powers relating to the surrender of leases and any further or other powers so conferred or reserved shall be
exercisable, as far as may be, as if they were conferred by this law, and with all the like incidents, effects and consequences.

Provided that the powers so reserved or conferred shall not prejudicially affect the right of any mortgage interested under any mortgage subsisting at the date of the agreement, unless that mortgagee joins in or adopts the agreement.

(10) Nothing in this section operates to enable a mortgagor or mortgagee to accept a surrender which could not have been accepted by the mortgagor with the concurrence of all the encumbrances of this law has not been passed.

(11) For the purpose of this section “mortgagor” does not include an encumbrancer deriving title under the original mortgagor.

(12) The powers of accepting surrenders conferred by this section by this section shall after a receiver of the income of the mortgaged property or any part of
it has been appointed by the mortgagee, under the statutory power and so long a s the receiver acts, exercisable by such mortgagee instead of by the mortgagee were in possession of the land, and mortgagee may, by writing have delegated any of such powers to the receiver.