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RECOVERY OF PREMISES: HOW TO LEGALLY EVICT A TENANT FROM YOUR PROPERTY WITHOUT BREAKING THE LAW

RECOVERY OF PREMISES: HOW TO LEGALLY EVICT A TENANT FROM YOUR PROPERTY WITHOUT BREAKING THE LAW


What is Tenancy?

Tenancy is the relationship that is created between a property owner and a Tenant. It is an understanding between the property Owner and the tenants which allows the Tenant to remain in that property for a defined term, enjoying all the privileges that comes with being in legal possession of a property. Tenancy is usually created over a property for a period not exceeding 3 (Three) years. Where the term granted exceeds 3 years, it is called a lease. To legally occupy a property as a Tenancy, the Tenant must have legally acquired the right of possession by paying rent for the period defined in the agreement with the Landlord who is the property owner.

For there to be said to be an existing Tenancy, the Tenant must enjoy absolute and peaceable possession of the property with all the facilities in it undisturbed either by the property Landlord or any other party who has interest in the property.

PARTIES IN TENANCY TRANSACTION:

The Landlord and the Tenant

The Landlord is the property owner while the Tenant is the Occupier/User who enjoys unrestricted possession of the property for a time certain.

RECOVERY OF PREMISES:

This is when a Landlord is desirous of taking possession of the property to which he had given to Tenant for a term for any of the following reasons

1. Where the Tenant is in breach of the terms of the agreement: This could arise as a result of the Tenant’s failure to adhere to what was agreed in the agreement which binds him and the Landlord. Examples of this breach include but is not limited to the following.

a. Failure to pay rent in advance where the previous rent has expired.

b. Where the Tenant sublets the property whereas the agreement prohibits subletting.

c. Where the Tenant uses the property for a purpose other than that which it was rented for.

d. The Tenant fails to insure where there is an insurance clause in the agreement.

e. Failure to pay applicable rates on the property eg. utility bills, etc.

2. The rent has expired and the Landlord needs the property: This is usually where the Landlord wants to recover the property for the use of his child or personal use.

3. Where the tenant has abandoned the premises: There are cases where tenants put the property under lock and seal for a long time and his whereabouts are unknown, Particularly after his rent has expired and all efforts to reach him have failed.

4. Where there is a need to make structural repairs to the properties which require that no tenant remains in the property while the repair is carried out.

LENGTH OF NOTICES REQUIRED:

For a notice to quit to be validly issued, the nature of the Tenancy must be considered and the duration (length of months or years) granted in the Tenancy must be put into consideration. Parties are usually allowed to decide and agree on the length of notice. Otherwise, the tenancy law of the State where the property is situated may apply. Using Lagos State as a case study, below is the length of notice required for different types of tenancy:  

1.  Tenancy at Will (Tenant who enters into the property on the permission of the landlord): The length of notice required here is 7 days.

2.  Monthly Tenancy: This requires one month Notice; one Calendar Month i.e 1st to the 30th or 31st of the month.

3.  Quarterly Tenancy: This tenancy requires a length of one month.

4.   Half-yearly Tenancy: This requires a length of 3 months.

5.  Yearly Tenancy: This requires 6 months. This notice must not fall within the pendency of the term granted. Failure to comply renders the notice invalid. Thus, you may have to wait for another 6 months before issuing a fresh notice. In some other states, the notice may lapse on the anniversary of the tenancy. By agreement of both parties, shorter notice may be given.

6.     Fixed Tenancy: This is determined by the effluxion of time. That is, the term agreed and paid for has elapsed and the parties have not agreed to continue the tenancy relationship.

7.     Where a tenant is in arrears of rent, only notice of the Owner’s intention to recover possession is required. This usually happens where the agreement between the Parties states that the rent shall be paid in advance and the Tenant defaults to make payment.

Irrespective of the above provisions on length of notice, you are at liberty to agree on a shorter length of notice or a longer length of notice. A clearly defined length of notice in a tenancy agreement will exclude the application of the above statutory provisions on Notices.

WHO CAN ISSUE NOTICE QUIT:

1. The Landlord.

2. The Landlord’s duly authorised Solicitors. To do this, you must give a written consent to your Solicitor to issue such notices. This notice must be addressed to a Lawyer in a Law Office and not the Law Office itself. This is because a Law Office is not authorised to practice Law. Only Lawyers are authorised to practice Law in Nigeria.

3. The Landlord’s Agent with Power of Attorney.

It has been a reoccurring event that the Tenant after being issued a notice to quit will  refuse and/or fail to give up peaceable possession of the property to the Landlord. The following steps are to be taken:

1. A valid notice to quit issued by the Landlord or his authorised agent or Solicitor.

2. At the expiration of such notice and the Tenant fails to deliver up possession, a 7 (Seven) Days’ Notice of Owner’s Intention to Recover Possession.

3. Where the Tenant remains in possession of the property after the 7 (Seven) Days’ Notice of Owner’s Intention to Recover Possession, Landlord shall file a summons in court with requisite jurisdiction to hear the matter.

SERVICES OF NOTICES:

By virtue of section 18 of the Tenancy Law of Lagos state, services of such notices on residential premises shall be by personal service, for residential premises which includes but not limited to the following:

a. By service on the in person

b. Delivery to any adult residing at the premises to be recovered;

c. By courier where the tenant cannot be found, by delivering  same at the premises sought to be recovered shall provided proof of delivery; or

d. Affixing the notice on a prominent part of the premises to recovered and providing corroborative proof of service

For business premises:

a. Delivery to a person at the business premises to be recovered or;

b. Affixing the notice on a prominent part of the premises to be recovered and providing corroborative proof of services.

COURT WITH JURISDICTION:

Both the Magistrate Court and High Court have jurisdictions to entertain matters. Jurisdiction in Tenancy matters is determined by the amount involved in the tenancy.

1.  By virtue of section 28 of Magistrates Court Laws of Lagos state, Magistrates Court in Lagos state have jurisdiction to entertain Tenancy Matter where the rental value of the property is N10,000,000.00 (Ten Million Naira Only) per annum. It does not matter whether the arrears exceeds N1o,ooo,ooo.oo. Thus, where the rental value of a property is N10,000,000.00 (Ten Million Naira Only) per annum but the Tenant is in arrears for a 2 (Two) years amounting to N20,000,000.00 (Twenty Million), Magistrate Court still has Jurisdiction to entertain the matter. Further, where the Landlord is willing to submit to the jurisdiction of Magistrate court even though the rental value of the property is above monetary jurisdiction of the court, he must forfeit the excess of monetary jurisdiction. For example, the Landlord is desirous of recovering possession of a property with a rental value of N15,000,000.00 (Fifteen Million Naira Only), he will forfeit the excess that is N5,000.000.00 (Five Million Naira Only).

2.   By virtue of Section 2 (4) of the Tenancy Law of Lagos State, 2011, the High court of Lagos state has jurisdiction to hear any recovery of premises matter where the rental value per annum exceeds the jurisdiction of the Magistrates court i.e where it is above N10,000,000.00 (Ten Million Naira Only).

3.   Location of the property: Where a property is situate in Ikeja for instance, it will be out of place to commence the recovery of premises in Oshodi or even on the Island. You must take note of the judicial division that the property falls under. This is to ensure that the matter is not struck out while already in court. Where the court has no jurisdiction to hear the matter, it will be an exercise in futility.

MODE OF COMMENCEMENT OF RECOVERY OF PREMISES:

Recovery of Premises is commenced by writ of summons either in the Magistrates or in the High Court. Another factor in determining jurisdiction of court is where the property is situated.

RELIEFS OR CLAIMS TO BE SOUGHT IN THE COURT:

1.  An order of possession to the Landlord(Owner)

2.  An order for payment of arrears by the Tenant

3.  An order of mesne until possession is given up (mesne profit is the money payable for the usage of the property occupied by the former Tenant as no tenancy relationship between the Owner and the former tenant).

4. An order for force opening of the premises, where the tenant has abandoned the premises and all effort to reach him has yielded no result.

5.  An order cost of litigation.

SUMMARY:

In summary, to legally recover one’s property without breaking the law requires that due process be followed at every step of the way as highlighted above. Moreso, the services of a Solicitor  is very important to ensure the law is not broken in the process of recovery of premises. Failure to comply with the rules could be fatal to the case of the Landlord.

APPLICABLE LAWS:

a.      Tenancy Laws of Lagos state, 2011

b.      Rent Control Law

c.       Land Use Act

d.      Recovery of Premises Law, Lagos.

e.      Magistrates Court Law of Lagos State