A tenancy relationship entails, a situation whereby a landlord hands over rights to occupy his property to a tenant over an agreed period of time, in exchange for rent. This implies that there are circumstances whereby a landlord may need to recover possession of the property from his tenant. In such cases, there are procedures set out by law for a landlord or his legal representative to follow and we’ll consider them in this article.
WHO IS A LANDLORD?
A landlord can be defined as one who owns a property or premises. He can further be said to be someone who is entitled to the reversion of the premises upon failure of the tenant not paying the prescribed amount for using the property. See Section 2 of the Recovery of Premises Act CAP 544 1945.
WHO IS A TENANT?
A tenant is someone who pays a fee (rent) in return for the use of land or a building owned by another. A tenant could also be defined as a person who occupies a premises for the payment of rent or not but does not include a person occupying premises under a claim to be the true owner of the premises.
PROCEDURE FOR TERMINATING A TENANCY AND OBTAINING POSSESSION OF THE PROPERTY
STEP 1; ISSUE STATUTORY NOTICE TO QUIT
For a landlord to successfully terminate a tenancy, the landlord must ensure that he serves the tenant with the statutory notices stipulated in the Recovery of Premises Act as well as State laws which regulates tenancy. Failure to issue the required notices on the tenant could pose a threat to the landlord’s claim for recovery of possession of the said premises.
A notice to quit is first given to the tenant. This first notice discloses the landlord’s desire to have the landlord/tenancy relationship terminated. There are different durations for a notice to quit depending on the duration of the tenancy involved. Thus, one needs to be careful in determining when a quit notice is to be served and when it expires as wrong calculation can vitiate the whole court proceedings. The period of notice given in the absence of any agreement by the parties, will be determined by statute. These are:
- 7 (seven) days notice to quit in the case of a Tenancy at will or weekly tenancy
- 1 (one) month’s notice to quit in the case of a monthly tenancy
- A quarter (i. e 3 months) notice to quit in the case of a quarterly tenancy
- 6 (six) month’s notice to quit in the case of a yearly tenancy. See section 8 of Recovery of Premises Act.
Where a tenancy is for a fixed term, a Notice to quit is not necessary once the tenancy has been determined by effluxion of time. Where the landlord wishes to go to court to get back the possession of his property, he is to serve a seven days’ notice of owner’s intention to apply to recover possession of the premises to the tenant. See Section 13(5) of the Tenancy Law of Lagos State 2011.
STEP 2; ISSUE A STATUTORY NOTICE OF OWNERS INTENTION TO APPLY TO RECOVER POSSESSION
After the service of a notice to quit has been given to the tenant and payment or handing over of the property is not given to the landlord, the landlord or through his solicitor may proceed to serve the tenant with a second notice called notice of owners intention to apply to recover possession of the property. It is also called a 7 (seven) days’ notice. On the expiration of this notice, where the tenant refuses to give up possession, then the landlord can initiate proceedings in court against the tenant. See section 10 of the Recovery of Premises Act.
STEP 3; OPT FOR AMICABLE NEGOTIATION AND SETTLEMENT THROUGH THE MULTI DOOR COURT HOUSE
Inasmuch as a landlord may file his claim in court after service of the two notices to the tenant and the latter refuses to vacate the premises, it is advisable that rather than going to court, a multi door court house should be visited first for dispute to be settled without recourse to court and of which such dispute can be settled amicably and peacefully.
Thus, a multi door court house can be defined as a court connected alternative dispute resolution centre. It is located in almost all 36 (thirty-six) states in Nigeria. It offers different alternative avenues to dispute resolution. It is a multifaceted dispute resolution centre. Multi door court house provides quick and less expensive access to justice without necessarily going to court. There are different avenues such as (arbitration and mediation) which are used to settle disputes unlike court which is through litigation.
Mediation can therefore be defined as the process whereby the parties to the dispute come together with a neutral third party, who guides both parties during negotiations with the hope of arriving at an amicable resolution of the dispute in question. The neutral third party is called the mediator who may be a lawyer. The mediator does not decide how the dispute between the parties should be settled rather he helps the parties look for a solution to their dispute which is accepted by the parties. In a situation where the parties cannot reach a decision to settling their dispute, the mediator can give his own solution but which are not to be imposed on the parties. Where the parties disagree with the solution proffered by the mediator, the mediation is called off and the parties are to explore other remedies to settling the dispute or institute the matter in the court.
STEP 4: INITIATE COURT PROCEEDINGS:
It is important to note that a landlord upon fulfilling the conditions of giving the tenants the statutory notices and the tenant not vacating the premises and having used mediation in the multi door court house and it failed, can now initiate a proceeding in a competent court having the jurisdiction to entertain the matter. The annual rental value of the property determines what court has jurisdiction to entertain the claim. When the rent is above N 10,000,000 (ten million naira only) in Lagos State, the High Court and not the Magistrate Court has jurisdiction to entertain the matter (See section 28 of the Magistrate Court Law of Lagos State 2009). In initiating any proceeding in court, a claim must be filed in court and the necessary fees paid. Also, an attachment of all the evidence in support of the case is very important. Hence, providing documents such as; the last rent receipt paid by the tenant, the utility bills (where the tenant is owing electricity bills or water bills) e.t.c would help the landlord’s case.
STEP 5: ENFORCE OF COURT ORDER AFTER JUDGEMENT IS GIVEN
Upon a judgment being given in favor of the landlord, the tenant is expected to comply with the order(s) of the court, but there are situations where the tenant fails to do so. In such situation, the landlord may apply for a writ of attachment and sale in which, the property of the tenant both moveable and immovable may be seized by the sheriff or the bailiff of the court and sold in order to recover the money owed to him by the tenant (see Section 17, 33 of the Cross River Rent Control Law, Section 25 of the Sheriffs and Civil Process Act and Section 17 of the Sheriffs and Civil Process Law of Cross River State). But where the landlord is in need of his property to be vacated, he can apply to the court to get a warrant of possession. This is a right given by the court to the landlord to get possession of the property (see Section 20,21 and 22 of the Recovery of Premises Act. Section 17 and 26 of Cross River Rent Control Law cap R3).
Procedures for recovering possession of premises from tenants are technical due to the various legal provisions governing it. It is therefore advisable to secure the services of a property lawyer to initiate proceedings to avoid missteps that could result in unnecessary delay. Need help recovering your property from your tenant? Contact us HERE, and we’ll be available to assist you.