Recovery Of Premises: The Law And A Lanldord’s Right to Self Help

A nightmare commonly shared by
property owners is that of an erring tenant unwilling or unable to pay the rent
as agreed on the due date. This is simply because real estate is as much a business
entity as a commercial bank. Many Landlords cannot resist the need for
self-help at the perception of this would-be-insipient and unfortunate dream.

To be sure the court frowns at a
Self-Help, as seen in Hemmings V. Stoke Poges Gulf Club Ltd[i], Scrutton LJ stated clearly that “…when the
grievance complained of is the removal by no more force than is necessary of a
trespasser and his property from the
premises which the landlord has a right to enter for the purpose, the justification
covers not only the entry but the forcible expulsion which is the object of the
entry and which makes the entry a forcible one”. Lord denning was more decisive
when he reaffirmed the above view in the case of McPhail v. Persons Unknown[ii]
“if (a tenant) remains in possession (after the expiration of his tenancy)
there is high authority for saying that the owner is not entitled to take the
law into his own hands and remove the tenant by force. He should go to the court
and get an order for possession”. The Nigerian courts pay tribute to this
reasoning. In the case of Oni v. Dada[iii]
where a tenant breached the terms of his tenancy agreement, his
landlord wrote to him of the determination of the tenancy forthwith and shortly
after, let the premises to a third party who trespassed into the premises. The
court held that the breach of covenant on the part of the tenant did not in any
way justify the rapid trespass in the premises.

Recovery of premises is a
delicate one. Because the law is natured to protect the weakest party in its
bid to do justice. In a recovery of premises matter, the court is seen to weigh
matters so as not to render a tenant suddenly homeless. The weaker party is prima facie the tenant. An act of
self-help usually enrages the court and serves to frustrate the landlord in the
event that such tenant is fully aware of his legal right and applies it at the
slightest infraction.

Usually the rights of a tenant
asides the content of a tenancy agreement, statutorily includes freedom from
encumbrance and quiet possession. Once this statutory rights are challenged
without an order for possession at the palm of the Landlord, it is deemed an
act of self-help.

The standard procedure for
recovery of premises should be followed by all property owners. The following
paragraph will discuss these in detail.

1.
WRITTEN
AUTHORITY

The Landlord should contact an
attorney who is sound in recovery of premises law, and authorize him in writing
to act on his behalf in the recovery process.

2.
QUIT NOTICE

Usually, when a tenancy has been
determined either by effluxion of time or expiry of rent or a breach of
covenant or most commonly rent due in arrears, a ‘quit notice’ shall be needed.
A ‘quit notice’ life span is determined by the nature of the tenancy agreement.
The formula used to determine the period of a notice is

a. Tenancy
at will or weekly tenancy- a week’s notice

b. Monthly
tenancy – a month’s notice

c. Quarterly
tenancy- a quarter’s notice (3 months)

d. Yearly
tenancy- a half year’s notice

It must be issued by the Landlord Himself or
an authorized agent. A quit notice should be well dated, with the name of the
Landlord, the full description and location of the target property, the name of
the tenant, the date in which the tenant should quit and deliver up possession.
However, it must be noted that a fixed tenancy/tenant, that is, a tenancy that
was already designed to end at a particular time and not simply an annual
agreement subject to renewal, needs no
letter of notice to quit

3.
NOTICE
OF OWNERS INTENTION TO RECOVER PREMISES

This is a very important notice
and so because without it, no Landlord can bring an action in court for an
order to recover possession. It is pertinent to note that this Notice unlike a
‘Notice to quit’ has a 7-day life span. According to J. A Agaba[iv]
“it would appear that the use of the phrase ‘the
tenancy shall lapse and the court shall make in order for possession and
arrears of rent’ used severally in section 13 of the tenancy law (of Lagos)
does not obviate the need for this notices. After the notice of quit has
expired, the notice of the owner’s intention refers to the landlord as the
owner and no more as the landlord because at the time of serving of the 7-day
notice it is deemed in law that by the ‘Notice to quit’ the tenancy has been
further determined.

4.
CIVIL
PROCESS BY WRIT OR PLAINT FOR REFUSINGTO DELIVER UP POSSESSION

Upon expiration of all the
aforementioned notices, the landlord should be able to go to court to recover
possession by seeking an order of possession from the court- section
16(1) of Rent Control Law of Lagos state and section 10 Recovery of premises
Act, Abuja. The fact that must be stated in the writ includes:

1. The
fact that the claimant is entitled to possession of the premises in question

2. Accurate
description and location of the premises

3. The
nature of tenancy and rent payable

4. The
date of expiration

5. The
fact that notwithstanding of the service of the notices the tenant has refused
to give up possession

6. The
claim section may contain the arrears of rent and mesne profit due

Certain documents must be
attached:

1. Evidence
of service of the notices, usually by picture

2. Duplicate
copies of the notices

5.
SERVICE
OF COURT PROCESSES TO THE TENANT

the tenant is to be served with
the processes personally by the court sheriff. However, where it appears that
he is trying to evade service, an application can be made to apply a
substituted service process.

In conclusion, a tenant is
protected by law until the landlord can prove that He has done the needful in
evicting the former. The protection supplied to the tenant earns Him the name
of a “Statutory Tenant” the moment the landlord result to court action and
until the order for possession is issued. In other words, aperson becomes
statutory tenant by operation of law the moment his tenancy is determined but
the order for possession has not be handed to the landlord. Some tenant abuse
the leniency of the court by counterclaiming and appealing until te landlord becomes knocked out by
frustration, this was the sad fact in the case of Ap V. Owodunni[v]
where a tenant refused to give up possession for 14 years but instead
resulted to sinister ways to frustrate the legal process for eviction. At this
junction it is pertinent to give alternative dispute resolution a chance in
sensitive issues like this. Over the years, the landlord has been observed as becoming the weaker party and must
tread carefully on this issue of repossession. Whereas, Alternative dispute resolution
is fast, seamless and cost effective in the long run. It aims at bringing the
party to a consensus, it could take the form of a win-win format or a win-lose
format at the core, it aims to solve the problem without unnecessary earth
tremors.

Landlord should please consult a
lawyer on matters concerning recovery of possession, and tenants should do the
same.