When your tenant refuses to pay rent (1)

In Nigeria, rent is usually paid annually; the initial rent for a new tenancy or lease is usually two years. When problems arise, it is usually because the tenant refuses to or cannot pay the rents due. The landlord now has on his hands, a recalcitrant tenant and no residual income. Recently, I heard the story of a retiree who rented out one of her houses. After the tenant paid the first two years’ rent, he failed to pay rents due at the end of the expiration of the two-year terms and refused to vacate the property. He sat tight without paying a dime for another three years. It turns out that he was building his own house elsewhere and when he had completed his house, he moved out. What I do not know is whether this retiree took legal action or not, but what a landlord cannot do is resort to self-help in situations where they have a recalcitrant tenant that is robbing them of their potential residual income. You cannot engage the local musclemen and instruct them to go and forcefully eject your tenant from the building. If you do so, you risk being liable to the tenant for trespass and any other claim that the tenant’s lawyer can dream up. Your best course of action when dealing with a difficult tenant is to visit a lawyer’s office to get advice and retain the services of a legal professional. You are going to need professional advice because in matters relating to taking possession of your property from your tenant (the recovery of premises) every little detail matters. Although some of these details are not fatal to a landlord’s desire to recover his premises, they can cause delays that further eat into the pocket of the landlord. Every state has its own recovery of premises law but for the most part, the processes are the same. In the Supreme Court case of Ihenacho v. Uzochukwu,(1997) LPELR-1460(SC), Iguh, JSC giving the warning against self-help also gave a summary of the steps necessary to recover premises. It cannot be overemphasised that recovery of possession of rented premises from a tenant in lawful occupation thereof by a landlord must only be obtained… by virtue of an order of Court obtained after hearing the parties pursuant to the provisions of the Recovery of Premises Law. … A landlord desiring to recover possession of premises let to his tenant shall firstly; unless the tenancy has already expired, determine the tenancy by service on the defendant of an appropriate notice to quit. On the determination of the tenancy, he shall serve the tenant with the statutory 7 days’ notice of his intention to apply to the court to recover possession of the premises. Thereafter, the landlord shall file his action in court and may only proceed to recover possession of the premises according to law in terms of the judgment of Court in the action. It must also be stressed that resort to self-help by a landlord, in a bid to recover the premises occupied by his tenant who is in lawful occupation does not come within the purview of the provisions of the law. Where a landlord fails or ignores to obtain an appropriate order of Court for possession after due hearing or enters the premises and takes the same without the said order of court, the landlord has invaded and committed an infraction of the rights of the tenant and renders himself liable in trespass…. Per Iguh, JSC at page 17-18, para.E The starting point is the notice to quit. Where there is no prior agreement between the landlord and tenant on the period of notice to be given, it will be determined by statute. The statutory period of notice to be given by either party depends on the term of the tenancy. For a tenancy at will or weekly tenancy, it is a week’s notice; for a monthly tenancy, one month’s notice; for a quarterly tenancy, a quarter’s notice; for a yearly tenancy, six months’ notice. Note also that in Lagos, there is provision under the Lagos Tenancy Law 2011 for a half-yearly tenancy, which requires three months’ notice. Care must be taken by the party giving notice, their agent or their solicitor in writing the notice to quit because apart from the details required to be contained in the notice, there is also the issue of effective dates. For instance, for a monthly tenancy, if the notice to quit was dated March 29 and required the tenant to vacate the property on April 30, and the notice is not served on the person until April 1, the notice will be invalid. This is because the effective date is the date of service and the notice having been served on the April 1 gave 29 days instead of the statutory one month.]]>