Because of the incessant rise in the population of the country and the development in the real estate sector and the need to provide accommodation for the rising population, it is necessary for there to be a regulation of the relationship between landlords and tenants in order to avoid arbitrary increments in rents, wrongful eviction and illegal holding over of premises. The procedure for recovering premises is largely governed and regulated by statutes. Every state in Nigeria now has its own law on Recovery of premises. Some of the laws include:
1. Recovery of premises Act. Cap 544 of the Laws of the Federation of Nigeria 1990)
2. Rent control and Recovery of Residential Premises Law, Volume 7, Laws of Lagos State, 2003A
3. Lagos Tenancy Law, 2011.
By Section 2 of the Recovery of premises Act Cap 544 of the Laws of the Federation of Nigeria (1990), the Landlord is a person entitled to immediate reversion of the premises and includes the attorney or agent of any such Landlord or any person receiving (whether in his own right or as an attorney or agent) any rent from any person for the occupation of any accommodation in respect of which he claims a right to receive same. The section further states that a tenant includes any person occupying premises, whether on payment of rent or otherwise, but does not include a person occupying premises under a bona fide claim to be the owner of the premises. The Rent control and Recovery of Residential Premises Law, Volume 7, Laws of Lagos State, 2003, expressly include a sub-tenant and service tenants (homes occupied by virtue of employment) for the purpose of recovery of premises.
The reason for the enactment of the Recovery of Premises Laws in various States of the Federation is principally to provide for procedures a Landlord must adopt to recover possession of his premises (property). Such procedures are primarily to protect the interest of the tenant against that of the Landlord. In the case of Okedare V. Hamid (1955) 15 WACA 17 at 19, Coussey .J observed that:
The main object of the Recovery of Premises Law was to place Limitations on the common Law rights of a Landlord with the object of regulating the recovery of and restraining summary eviction from occupied premises.
At common law, the landlord on the effluxion of time or expiration of a valid notice to quit, may proceed to court for possession. However, the Recovery of Premises Law requires an additional 7 days’ notice of owner’s intention to apply to court to recover possession to be given to the tenant. The landlord can only take out a Writ after the expiration of the 7 days. The tenant therefore becomes a statutory tenant and cannot be evicted by force, but by a lawful court order.
In Ihenacho V. Uzochukwu (1997) 1 SCNJ 117 at 284, it was made clear that a landlord can be sued and made to pay damages for unlawful eviction. In that case, the Supreme Court held that resort to self-help by the Landlord to evict a tenant who is in lawful occupation is not within the purview of the provisions of the recovery of Premises Law and that such a landlord renders himself liable to the tenant in trespass. It should be noted however, that at common law, the tenant does not have that right; he is treated as a tenant at sufferance or a trespasser.
Procedure For Recovery Of Premises
Two important conditions must be satisfied before the procedure laid down in the Recovery of Premises Law can be invoked, they are:
i. There must be in existence some ‘premises’ as defined by Law. Section 36 of the Rent control and Recovery of Residential Premises Law, Volume 7, Laws of Lagos State, 2003 defines Premises to include, “ a house or building or any part thereof together with its gardens or appurtenances”
ii. The landlord-tenant relationship must be established
Notice To Quit
This is the very first step to take in any case of recovery of Premises.
A landlord seeking to recover possession of his premises before the expiration of the tenancy (effluxion of time) is obliged to issue a notice to quit to the tenant.
The notice stipulates a period within which the tenant must quit possession of the premises. The period of notice given will usually depend on the agreement between the parties. In the absence of any agreement, the period of notice will be determined by Statute. For instance, Section 8 of The Recovery of Premises Act. Cap 544 of the Laws of the Federation of Nigeria 1990, provides that in the absence of express agreement to the contrary, the period of notice to be given by either parties shall be as follows:
1. Tenancy at will or weekly tenancy- a week’s notice
2. Monthly tenancy- a month’s notice
3. Quarterly tenancy- a quarter’s notice
4. Yearly tenancy-half a year’s notice
Tenancy exceeding one year is regarded as a yearly tenancy and 6 months notice is sufficient. The nature of tenancy shall in the absence of any evidence to the contrary be determined by reference to the mode of payment and demands for rent.
Under the Tenancy Law of Lagos state, 2011, Section 13 provides thus:
13.-(1) where there is no stipulation as to the notice to be given by either party to determine the tenancy, the following shall apply-
(a) a week’s notice for a tenant at will;
(b) one (1) month’s notice for a monthly tenant;
(c) three (3) months notice for a quarterly tenant;
(d) three (3) months notice for a half-yearly tenant; and
(e) six months notice for a yearly tenant
(2) In the case of a monthly tenancy, where the tenant is in arrears of rent for six (6) months, the tenancy shall lapse and the Court shall make an order for possession and arrears of rent upon proof of the arrears by the landlord.
(3) In the case of a quarterly or half-yearly tenancy, where the tenant is in arrears of one (1) year rent, the tenancy shall lapse and the Court shall make an order for possession and arrears of rent upon proof of the arrears by the landlord.
(4) Notice for tenants under subsection (1) (c), (d) and (e) of this Section need not terminate on the anniversary of the tenancy but may terminate on or after the date of expiration of the tenancy.
(5) In the case of a tenancy for a fixed term, no notice to quit shall be required once the tenancy has been determined by effluxion of time and where the landlord intends to proceed to Court to recover possession, he shall serve a seven (7) days written notice of his intention to apply to recover possession as in Form TL5 in the Schedule to this Law.
The notice to quit must be issued by the landlord himself or by an authorized agent or Solicitor. Such agent or Solicitor must be authorized in writing. The following may be regarded as essentials of a valid notice to quit:
1. The name of the landlord or his agent
2. The name of the tenant
3. The nature of the tenancy (which is the determinant of the duration of the notice)
4. The date the tenant should quit and deliver up possession. This may be an exact date or some ascertainable date from the date of service of the notice. It should be noted that it is the date of service and not the date on the notice that is material. Thus, the statutory length of the notice must be complete between service and the expected date of expiry. Also, where the situation requires a month’s notice, it must be one calendar month. This brings me to the ploy of some landlords who back date quit notices and serve them on their tenants. This is a fraudulent act and totally unacceptable. It is a good thing that the procedure followed in recovery of premises cases is the date of service of the notice and not the date on the notice. Hence, tenants who are given back dated notices should lay emphasis on this in court. But this is also not to encourage tenants to lie about the date on which they were served the notices in court as this would amount to the crime of perjury and it is punishable.
Notice Of Owner’s Intention To Recover Possession
This is notice is also known as 7 days notice. On the expiration of the notice to quit or the determination of the interest of the tenant, if the tenant or any person actually in possession of the premises or any part thereof neglects or refuses to quit and deliver up possession of the premises or any part thereof, the landlord or his agent may cause the written notice of the owner’s intention to proceed to recover possession to be served on the tenant. The date must not be less than 7 days- Section 13 of the Rent control and Recovery of Residential Premises Law. In calculating the 7 days, it must be 7 clear days; the day of service must be excluded but the day of expiry must be included. It is worthy of note to know that the notice of owner’s intention to recover possession cannot be issued and served on the tenant before the expiration of the notice to quit or effluxion of time. Hence, the reference to the landlord as owner evidences the determination of the tenancy and a cessation of the landlord-tenant relationship.
Writ Or Plaint Against Tenant Or Person Refusing To Deliver Up Possession
By Section 16(1) of Rent control and Recovery of Residential Premises Law, Vol 7, Laws of Lagos State, 2003, and Section 10 of the Recovery of Premises Act, 1990, on the expiration of the time stated in the notice of intention to apply to recover possession, if the tenant or any person in possession of the premises still fails, refuses or neglects to give up possession, then the landlord or his agent may apply to the appropriate court for the issuance of a Writ or enter a plaint against the tenant or such other person refusing or neglecting to deliver up possession.
The Court or Tribunal to which the landlord may apply for the Writ is one that has jurisdiction in the district or division where the premises is lying and situated. In Jurisdictions like Lagos and Abuja, Magistrates have jurisdiction to sit as Tribunals.
Services Of Processes
Service of any notice under the Rent control and Recovery of Residential Premises law, is to be effected according to the rules operating in the Magistrate Court. That is, personal service, but where personal service is not possible, a copy of the process shall be pasted on some conspicuous part of the premises sought to be recovered and such pasting shall be deemed good service on the Defendant. It is however advisable to seek leave of court when the Writ is to be served through substituted means.
It is important to note here that where a tenant carried out improvements on the premises with the written consent of the landlord and such improvements have not been exhausted before the landlord terminates the term of the tenancy, the tenant is entitled to counter claim for unexpired value of such improvements.
Except the tenancy expires naturally, a landlord seeking to recover possession of his premises is obliged to follow the procedure discussed above. He cannot force or throw out the tenant. Due process must be followed otherwise the whole exercise will be a nullity.
Abandoned Premises (Lagos State)
After all said on the procedure to be followed by a landlord to evict his tenant, what if the landlord follows the procedure but the tenant decides to lock up and leave the premises without notifying the landlord of his exit and his whereabouts, thereby leaving the landlord with no one to serve the notices on and no one to give up possession?
It is apparent to note that giving up lawful possession under the recovery of premises Act and Laws means giving up vacant possession. That is, the premises must be left opened with no property of the tenant in it. But in a case where a tenant locks up the premises/property and also made himself unavailable or unreachable, the landlord cannot resort to self-help by force opening the premises without the order of Court as there is a presumption that the tenants belongings are still in the premises.
To my mind, the above scenario, situation or presumption does not expel the fact that some hostile tenants do this to punish or delay their landlords by unnecessarily holding on to their properties. Be that as it may, this situation has been properly put under check in Lagos State. Under the Tenancy Law of Lagos State, 2011, such premises are referred to as abandoned premises. Hence Section 15 of the said law provides for the procedure by which such properties may be recovered by their owners:
15-(1) A premises will be deemed to be abandoned where the-
(a) tenancy has expired ;and
(b) tenant has not occupied the premises since the tenancy expired and has not given up lawful possession of the premises.
(2) Following subsection (1) above, the landlord shall-
(a) issue a seven (7) days notice of the landlord’s intention to recover possession as prescribed in Form TLA, which shall be served by pasting the notice on the abandoned premises; and
(b) apply to the Court for an order for possession and an order to force open the premises.
From the above, it is apparent that in Lagos State, when a tenancy has expired and the tenant has refused to give up possession and perhaps like in the scenario painted above, his whereabouts is unknown to the landlord, such premises is deemed abandoned, and once the conditions and procedures of Section 15 enunciated above have been met an order for possession and an order to force open the premises will be issued by the court.
Credit: Ayotunde Shabi, Legal Practitioner, Funke Busari, Casefileng.com