It is common among the landlords/agents to rush to lawyers after the expiration of tenant's rent to ask them (lawyers) to issue a 7- day owner's intention to possess because the tenant is in arears of rent.
his is wrong in law and it cannot sail through if the matter gets to court and the tenant gets a competent lawyer. This is because the conditions precedents have not been fulfilled.
If a tenant who was issued insufficient/invalid quit notice knows his rights or consults an expert, he will just sit tight and be expecting the landlord to take him to court, where the notices will be declared invalid and the court will order a fresh valid notice to be issued on the said tenant.
We discover that quit notice properly so-called is not understood by people. Some people erroneously think that it is a prerequisite in all instances; while some believe that a 6 (Six) month notice must be given to a yearly tenant at all times and in all circumstances; some, in error, also believe that once a tenant's rent expires, it requires only a 7 days’ notice of owners’ intention to possess the demise property.
These are indeed errors in law, which will be put in correct perspective ‘seriatim’:
1. It is the prerogative of the landlord to determine whether he is giving any quit notice or no quit notice at all at the end of the tenancy-according to the provisions in the tenancy agreement signed by both parties before the tenant parks in.
Any term in the agreement is binding on the parties who endorse it voluntarily without any form of coercion. Indeed, provision as to the duration of the Quit Notice to be given stated in the Tenancy/Lease agreement supersedes the provisions for quit notice in the Tenancy Law of Lagos State 2011.
Indeed Section 13 is only applicable where there is no contrary provision in the agreement. The import of the introductory paragraph of the section is that if instead of 6 months both parties agree to one day notice, so be it. The Section is herein under reproduced:
'S.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 notice for a tenant at will;
(b) One (1) month 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
Most of the eviction problems are self-inflicted by the landlords, therefore they shouldn’t complain when the results of their negligence come to the fore. It is the usual practice that the landlord will collect agreement fees (even though it is wrong in law), and pocket it instead of engaging a lawyer to draft a Tenancy agreement for them.
2. Tenancy for a fixed term
Tenancy agreement can be drafted in such a way that landlords will not need to bother themselves on the issue of quit notices. In this, what will be required is 7 days’ notice. See Section 13(5) of the Tenancy Law.
3. Can expiration of rent validly terminates tenancy agreement?
The answer to this is NO unless the tenant is a licensee; or he operates tenancy for a fixed period. The mere fact that a tenant's rent has expired does not make him a squatter or tenant at will, he is indeed a statutory tenant and he is still protected by the law.
The law requires that he should be given valid quit notice unless he is in arears for a specific months/year as provided by section 13(2) & (3) of the Tenancy law, which is reproduced herein under:
(2) In the case of monthly tenant, where he is in arrears of rent for six months, the tenancy shall be determined and the court shall make order for possession and arrears of rent upon proof of the arrears of rent by the landlord.
(3) In the case of a quarterly or half yearly tenant, where tenant is in arrears of rent for one year, the tenancy shall be determined and the court shall make an order for possession.....'
Apart from where the above conditions have taken place, valid quit notice is a perquisite before a tenancy can be determined or terminated. Indeed the Tenancy Law of Lagos 2011 does not make provision for a yearly tenant that is holding over; therefore, Section 13(1) (e) will be applicable where there is no contrary agreement.
4. Clarification on the issue whether quit notice could be issued before the expiration of tenancy
Quit notice is permissible in law to run concurrently with subsisting tenancy. For instance, a yearly tenant that is let into a premise in January 1st 2017 could be issued with a valid 6 months notice on July 1st 2017 to end on December 31st 2017.
The essence of quit notice is to put the tenant on notice so that he could look for alternative accommodation. Whether it is given during the pendency of the rent or after the expiration of the rent is of no moment, the most important thing is that the required month(s) must be fulfilled.
The notice can be given in excess, for instance instead of giving a 6 months notice, the landlord may decide to give 7 months. However, if by calculation, in law, a quit notice is a day shorter than the required months, then there is no quit notice validly known to law.
In law a month is a full calendar month starting from 1st to the last day in the month. You cannot start counting of a month other than from 1st (see the Interpretation law). For our position that quit notice could be issued to tenants anytime even during the subsistence of their rent see Section 13(4) of the law which provides thus:
(4) Notice for tenants under subsection (1) (c), (d) and (e) of this Section needs not terminate on the anniversary of the tenancy but may terminate on or after the date of expiration of the tenancy.
It is common occurrence with impunity for landlords in Lagos state to attempt to forcefully or forcibly eject their tenants without taking the tenant to court.
They sometimes engage in self-help by the following acts inter alia:
a. Intimidation and threatening of the tenants.
b. Removal of the door by force.
c. Padlocking the door to prevent entrance by the tenant.
d. Removal of some of the roofing sheets etc
In order to curtail these extreme and illegal acts of the landlords, the Tenancy Law of Lagos State 2011 has made such act an offence which attracts Six months imprisonment or 250,000 fine. For clarity, Section 44(1) is herein under reproduced:
44-(1) subject to the provision of any law-
(a) any person who demolishes, alters or modifies a building to which this law applies with a view to ejecting a tenant and without the approval of the court; or
(b) any person who in respect of any premises-
(i) attempts to forcibly eject or forcibly eject a tenant;
(ii) threatens or molests a tenant by action or words, with a view to ejecting such tenant; or
(iii) willfully damages any premises
Shall be guilty of an offence and is liable to a fine not exceeding two hundred and fifty thousand naira or a maximum of six months imprisonment.
In conclusion, if all landlords in Lagos understand and avoid the above needless mistakes, then it would not be difficult for them to eject bad tenants.
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