Jun 15, 2020

"TENANCY CRISIS (Part Two): How to Calculate Notice to Quit & the Procedure for Recovery of Property" | Okpi Bernard Adaafu (Oba) Esq.


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.

 


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