In our society today, every person must have a place called home, a shelter over his or her head. One may have either a house of his/her own or live in someone else’s apartment for a fixed period of time in exchange of an amount of money known as rent, thereby creating, a landlord and tenant relationship. Circumstances may however occur where a tenant fails to pay his or her due rent or money owed to the landlord at various stages of the tenancy relationship such as;
i) Where the duration of tenancy still subsists e.g the case of Mr A, a yearly tenant, whose rent has recently gotten expired, makes part payment of his yearly rent to his landlord Mr J, on the condition that he pays up his balance on an agreed date, but Mr A has failed to pay up his balance after the expiration of the agreed date.
ii) Where the tenancy relationship has been brought to an end by statutory notices to quit by the landlord, and the tenant still has possession of the property in question.
iii) Where a court order granting possession of the property has been obtained in favour of the landlord, the tenant has given up possession of the premises and is nowhere to be found to recover the money owed.
Whichever of the above circumstance you fall under as a landlord, there is hope for you, as you can still recover the amount owed by such tenant, and there are lawful ways of doing so. We’ll discuss the options available to you as a landlord to recover such amount owed in event of the circumstances mentioned above.
WHERE THE TENANCY RELATIONSHIP SUBSISTS AND TENANT OWES RENT.
In this situation, there are two options available to the landlord;
- Seek the services of a mediator or legal practitioner with expertise in alternative dispute resolution to recover such rent by way of mediation or
- Commence a court action through your lawyer, to recover possession of premises alongside an order of court compelling the tenant to pay up arrears of rent.
Arrears of rent simply means rent owed by the tenants before the due determination of tenancy. Should the landlord resort to option (ii) above and the court gives an order with respect to arrears of rent, the landlord can enforce such order upon seizure of the property or goods of the tenant by a Court Sheriff, Bailiff or Officer of the court (as the case may be), by applying in writing for the said arrears of rent. The bailiff or officer of court may upon satisfying such conditions as provided in Section 32 (1) to (3) of the Cross River State Sheriffs and Civil Process Law CAP S5, as well as the Sheriffs and Civil Process Law of other states, sell the seized goods of the tenant and hand over proceeds equivalent to the arrears of rent owed, to the landlord.
WHERE THE TENANCY RELATIONSHIP HAS BEEN BROUGHT TO AN END BY STATUTORY NOTICES TO QUIT.
Under Nigerian tenancy law, a tenancy relationship is said to be brought to an end once statutory notices are filed in court and served on the tenant (NB; Statutory notices include; notice to quit and notice of owner’s intention to apply to the court to recover possession of premises).
What this means is that by filing the said notices, the court has been given power to determine the outcome of the matter. Where a tenant in question owes rent under this circumstance, the landlord has an option to apply to the court through his / her legal representative, for an order of the court compelling such tenant to pay up money /rent owed even after the statutory notices were served on the latter. This kind of debt is referred to as mesne profit.
Mesne profit is defined as monies payable for the use and occupation of the landlord’s premises as a result of still being in the said premises or property by the tenant after due determination of the term of the tenancy. In practice, a claim for arrears of rent and mesne profit go hand in hand.
Indetermining the mesne profit that a landlord can receive from a tenant whose tenancy has been brought to an end, the use of the previous rent can be a guide or getting a qualified estate valuer who will assess the rental value of the premises. It is important to note that the claim for mesne profit begins from the date of service of the process for determining the tenancy.
WHERE A COURT ORDER GRANTING POSSESSION OF THE PROPERTY HAS BEEN OBTAINED IN FAVOUR OF THE LANDLORD, THE TENANT HAS GIVEN UP POSSESSION OF THE PREMISES AND IS NOWHERE TO BE FOUND TO RECOVER THE MONEY OWED.
Where an application for recovery of possession of premises alongside claims for recovery of rent owed has been brought before a court, and the court upon finding that the tenant indeed owed rent before and or after the expiration of tenancy, gives and order compelling the tenant to pay up rent owed and the latter is nowhere to be found, the court may issue a writ of attachment and sale on the property or goods of the tenant. This order empowers the Sheriff to seize, sell and recover the money equivalent of any property of the tenant discovered in any place within the State where the court is located in favour of the landlord. However, the requirements for recovery and sale of the goods as provided in Section 32 (1) to (3) of the Cross River State Sheriffs and Civil Process Law CAP S5 must be satisfied.
CONCLUSION.
Recovering rent owed by a tenant at any stage of a landlord/tenant relationship is possible, but requires a great deal of pro-activeness and caution on the part of the landlord, from the time the landlord/tenant relationship is formed till situations arise where such tenant is unable to pay up rent as well as other bills that might accrue as a result of the relationship. Documents such as rent receipts, tenancy agreements, utility bills, written correspondence would help a great deal in recovering rent as well as other debts owed by a tenant. Thus as a property owner, it is advisable to seek the services of a lawyer to guide you at every stage of this relationship to avoid future legal pitfalls with regards to your property.
A tenant should be aware that upon termination of his/her tenancy, a landlord is entitled to collect the unpaid arrears of rent and the latter is also entitled to mesne profit where the tenancy has been brought to an end by service of statutory notices.
The notion that tenants upon the expiration of rent, are entitled to stay on the said property of the landlord and vacate at any time without paying rent or money owed, is an unfounded notion and should be discarded at best. The tenant upon the determination of the tenancy, becomes a tenant at will and as such needs to pay for every month he/she spends on the said property until possession is given up to the landlord. Also, the landlord has the right to collect monies for bills on the said property that has not been paid by the tenant, be it electricity bills or water bills etc. as a landlord has a right to seek payment of such outstanding bills in the event of the tenant’s failure to do so.
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