This
article attempts to settle the crisis between landlord and tenant. Part One of
the article explained everything about tenancy agreement and types of tenancy.
In this last part, we will focus on the rule guiding notice to quit, how to end
tenancy, procedure for recovery of premises and how to avoid the crisis between
landlord and tenant.
HOW
TO CALCULATE LENGTH OF NOTICE TO QUIT
Landlord
and Tenant are free to agree on the length of notice to quit; where there is no
agreement, Tenancy Law of the State where the property is located will apply.
The followings are default length of notice to quit provided by law.
1.
Yearly Tenancy: six months’ notice
2.
Half Yearly Tenancy: six months’ notice
3.
Quarterly Tenancy: three months’ notice
4.
Monthly Tenancy: a month’s notice
5.
Weekly Tenancy: a week’s notice
The
calculation of the length of notice to quit by the Court is very complex; a
month’s notice to quit, issued on 2nd November will expire on 31st December and
not 2nd December. Generally, notice to quit can be given at any time prior to
the date of expiration of the current tenancy. The length of the notice to quit
can be more than the one provided by the parties or the law but it must not be
shorter. In Abuja, notice to quit must terminate at the eve of the anniversary
of the current term (i.e. a day before expiration of tenancy). While in Lagos,
notice to quit is valid once it is stated to terminate on or after the
expiration of tenancy. In Nigeria, all states have different law on tenancy;
the provisions are the same with minor changes.
FREQUENTLY ASKED QUESTIONS
These
are some of the questions I received after the publication of “Tenancy Crisis
Part One”.
QUESTION
ONE:
My
landlord threatens to use police to evict me because I owed him six months’
rent. Please help me.
ANSWER:
The Landlord cannot force you out of the premises with the help of Police
because doing so will amount to trespass. The law protects you and gives you
the right to sue your landlord for damages whenever the landlord enters your
apartment without your consent or used force to evict you. The right thing for
the landlord to do is to follow due process of law by approaching the Court.
QUESTION
TWO:
My
tenant refused to pay rent for three years now. I do not want him to occupy my
property again. I want to involve the Police because I tried every peaceful
method. What do you think I should do?
ANSWER:
Tenancy relationship is not regulated by criminal law, it is wrong to report a
tenancy matter to the Police. However, the Police can only be invited when
there is a fight, burglary, etc. The duty of the police is limited to the
criminal matters arising from tenancy relationships. Thus, reporting the matter
to the Police will amount to waste of time and resources because the Police
will surely refer the matter to the Court. The right thing to do is to read the
tenancy agreement, in order to check the procedure for eviction. Where the
procedure for eviction is not stated in the agreement, peruse the law of the
state where the property situates for direction. Usually, if a tenant owes
arrears of rent for more than one year, it is good for the landlord to issue
seven days’ notice of owner’s intention to apply to Court to recover premises,
and then proceed to file action for repossession in Court after the expiration
of the seven days.
HOW TO END TENANCY
There
are several ways by which tenancy can be determined. The choice of which one to
take is crucial because choosing a wrong mode can lead to conflict.
Surrender:
This
is when the Tenant gives up possession voluntarily before the expiration of the
agreed period. It may be express or implied by conduct. To be effective, the
Landlord must indicate acceptance.
Forfeiture:
This
is when the Landlord re-enter the premises or apply to court to terminate
tenancy on the occurrence of certain event. This can only occur in fixed
tenancy and must be stated in the tenancy agreement.
Merger:
Here
the Landlord surrenders his interest to the Tenant. This is when a Tenant
purchases the property or acquires a superior estate owned by the Landlord. It
is the opposite of surrender.
Rescission:
This
is where the law permits one of the parties to apply to court to terminate
tenancy when there is an element of fraud in the tenancy relationship.
Force
Majeure:
Where
there is an occurrence of event without the fault of either party, tenancy will
come to an end. For example, destruction of property by fire or flood.
Effluxion
of time:
This
is where tenancy relationship comes to an end upon expiration of the agreed
period. Service of notice is not necessary but the tenancy agreement may
contain option to renew and service of notice to quit. The law prohibits
forceful eviction. Thus, due process of law must be followed.
Termination
by Operation of Law:
This
is when the law permits recovery without issuance of notice to quit. Once a
monthly Tenant is in arrears of rent for three months, the Landlord can issue
seven days’ notice of owner’s intention to apply to court to recover
possession. The tenant is not entitled to notice to quit. Also, the tenant is
not entitled to notice to quit in fixed tenancy (as discussed above) and a half
yearly tenant in arrears of one year is not entitled to notice to quit.
PROCEDURE
FOR THE RECOVERY OF PROPERTY
a.
The Landlord should issue letter of authority to a Lawyer,
b.
The lawyer will issue notice to quit (where necessary). If the Tenant fails to
deliver possession at the expiration of notice to quit,
c.
The lawyer will issue seven days’ notice of owner’s intention to apply to court
to recover possession. If the Tenant neglect to vacate the premises at the end
of seven days,
d.
The lawyer will approach the appropriate court (Magistrate Court or High Court;
depending on the rental value of the property),
e.
Court will issue summons and commence trial,
f.
The Court will deliver judgment (usually extending the stay of the tenant for
certain period or order the tenant to vacate the property immediately and award
necessary costs). Where the tenant is ordered to pay arrears of rent and such
Tenant has no money, the court will attach valuable personal property of the
Tenant and auction it to pay the Landlord.
HOW
TO AVOID TENANCY CRISIS
The
Tenant should deliver possession once notice to quit has been served. Where the
Tenant neglects to deliver possession after the end of tenancy and subsequent
issuance of statutory notices; the Landlord should not forcibly evict the
Tenant because doing so may lead to avoidable legal battle and financial waste.
The legal option for the Landlord is to take action in court and demand for
repossession, costs and arrears of rent/damages.
Read Part of the article via:
1.
https://thenigerialawyer.com/tenancy-crisis-part-one-nature-of-tenancy-covenants/
2. http://insidearewa.com.ng/tenancy-crisis-part-one-nature-of-tenancy-covenants/
5. https://www.legalnaija.com/2020/06/tenancy-crisis-part-one-nature-of_6.html?m=1
Other
articles by the Author:
1.DIVORCE:
https://thenigerialawyer.com/grounds-for-divorce-a-legal-digest/
2.
Life after Law School. https://www.legalnaija.com/2020/05/life-after-law-school-setting-up-right.html?m=1
Contact
the Author:
Twitter: @OkpiBernard
Email: okpibernardadaafu@gmail.com
Phone: +2349032116272
OKPI BERNARD ADAAFU (OBA) ESQ (LL.B, B.L, ACIArb, MCMC) is an Associate at KANU
G. AGABI, SAN (CON) & ASSOCIATES, Abuja, Nigeria.