The procedure for the recovery of premises is generally regulated by statute. In the absence of any separate agreement with respect to the period of notice to be given to a tenant, a landlord is expected to comply with the provisions of the Lagos State Tenancy Law especially in terms of notice before he can recover his premises from a tenant, and going contrary implies that such eviction is invalid. In Lagos State, the following laws govern the recovery of premises:
- Lagos State Tenancy Law 2011
- Rent Control and Recovery of Residential Premises Edict No. 6, 1997 of Lagos State;
- Recovery of Premises Law, Cap. 118, Laws of Lagos State 1973; and
- Magistrate Court Law, Laws of Lagos State 2009.
The Lagos State Tenancy Law 2011 (“the Law”)provides that a Court shall have jurisdiction to determine matters in respect of tenancy of any premises let before or after the commencement of the law. The law further provides for the interpretation of the word “Court” to mean High Court and Magistrate Court of Lagos with the exclusion of customary court. It is important to note that the Law does not apply to the following premises and location in Lagos state:
- Residential premises owned or operated by educational institutions;
- Residential premises provided for emergency shelters;
- Residential premises in a care center, hospital, whether public or private or mental health facility; and
- Premises made available in the course of providing rehabilitative or therapeutic treatment.
Also, the Law does not apply to Apapa, Ikeja GRA, Ikoyi, and Victoria Island areas of Lagos State.
It is worth noting that the areas where the Law does not apply, the Rent Control and Recovery of Residential Premises Edict No. 6, 1997 of Lagos State and the Recovery of Premises Law, Cap. 118, Laws of Lagos State 1973 would apply to residential and non-residential areas respectively.
TYPES OF TENANCY RELATIONSHIP
In Bocas Nigeria Ltd v Wemabod Estates Ltd, the Court stated the three (3) main types of tenancy which are: tenancy at will; periodic tenancy; and fixed-term tenancy while the Tenancy Law of Lagos State 2011 recognizes the following types of tenancy: tenancy at will; monthly tenancy; quarterly tenancy; half-yearly tenancy; yearly tenancy; and fixed tenancy. The type of tenancy relationship determines how the tenancy can be determined.
A periodic tenancy can be monthly, quarterly, or yearly. The selected form of periodic tenancy must be expressly stated on the face of the tenancy agreement, where this is not contained in the tenancy agreement, it shall be determined by reference to the time when the rent was paid or demanded.
Unlike periodic tenancy, fixed tenancy contains a clearly defined tenure of the tenancy. Hence, it could be for a specified number of months or years. However, regardless of the form, the term must be certain and clearly stated i.e. commencing from May 12, 2020, and ending June 12, 2020.
It should be noted that this distinction is very crucial because of the legal consequences attached to them.
PROCEDURE FOR RECOVERY OF PREMISES UNDER TENANCY LAW OF LAGOS
In Iheanacho v Uzochukwu, the Supreme Court set out the procedure for recovery of premises as follows:
A landlord desiring to recover possession of premises let to his tenant shall:
a) Firstly, UNLESS THE TENANCY HAS EXPIRED, determine the tenancy by service on the tenant an appropriate notice to quit.
b) On the determination of the tenancy, he shall serve the tenant with the statutory 7 days notice of intention to apply to the court to recover possession of the premises.
c) Thereafter, he shall file his action in court and may only proceed to recover possession of the premises according to the law in terms of the judgment of the court in the action.
The Landlord must comply strictly with the provisions of the statutes. Judges have on several occasions reiterated the fact that in an action for the recovery of premises, parties must comply strictly with the due process of the law. The Court decided in Ndieli & Anor v Eze that:
It is the law and it has been reiterated almost to irritation that recovery of premises must be done by due process of the law. Any other form of recovery is unlawful. It cannot be over-emphasized that recovery of possession of premises from a tenant by a landlord can only be by an order of Court obtained after hearing the parties pursuant to the relevant Recovery of Premises Law.
Where a landlord derogates from these procedures, an action can be maintained against him by the tenant depending on the level of derogation. The landlord also risks rendering himself for a trespass action. This position is further supported by the case of Ihenacho v. Uzochukwu, where the Supreme Court held that resort to self-help by a landlord to evict a tenant who is in lawful occupation is not within the purview of the law; and such a landlord renders himself liable to the tenant in trespass.
The procedure to be applied in the recovery of premises depends on the type of tenancy in question. Thus, the applicable procedures for periodic or fixed tenancy shall be examined below.
a. Procedure for recovery of premises for a periodic tenancy
A landlord who intends to file an action in court for recovery of premises from a tenant can seek an order granting him the arrears of rent, mesne profits, and possession of the apartment.
A tenant can be evicted or have the premises recovered from him on any of the following grounds;
- Where the premise is being used for immoral or illegal purposes;
- the premise has been abandoned;
- the premise is unsafe and unsound as to constitute a danger to human life or property; or
- the tenant or any person residing or lodging with him or being his sub-tenant constitutes by conduct an
act of intolerable nuisance or induces a breach of a tenancy agreement.
A landlord willing to recover premises from the tenant will need to adopt the following procedure:
In the absence of a tenancy agreement stating the notice to be given, the Landlord is expected to issue a notice in accordance with Section 13 of the Lagos State Tenancy Law 2011 and it provides that where the tenancy is an annual tenancy, the tenant shall be entitled to a 6 months’ notice to quit.
Upon the expiration of the notice to quit the relationship is deemed terminated. Where the tenant still holds over the premises, the landlord (owner) can then serve the tenant with a seven (7) days’ notice of the owner’s intention to recover possession.
Finally, where the tenant fails to give up possession at the expiration of the seven (7) days’ notice, the landlord can then apply to the court for a court’s order evicting the tenant by way of summons with particulars of claim annexed thereto.
b. Procedure for recovery of premises for fixed tenancy
Evicting a tenant under a fixed tenancy is a bit different from what obtains under a periodic tenancy. Since a fixed tenancy is always for a term certain, the relationship is deemed terminated or determined at the end of the tenancy or at the termination date contained in the tenancy agreement. The implication of this is that a landlord does not have to serve a notice to quit on a tenant to determine the tenancy. In order to recover possession in this type of tenancy, the landlord must serve on the tenant a seven (7) days’ notice of the owner’s intention to recover possession. However, where the notice is less than seven days or served within the term of the tenancy it will be declared invalid.
The importance of understanding the concept of recovery of premises cannot be over-emphasized, as such would help parties make quality decisions that will help prevent the occurrence of disputes. It will further assist in curbing the undue delay in the process of recovery of premises and avoid the unnecessary costs and expenses incurred by landlords in tenancy matters.
Source : Mondaq