Sunday, 16 December 2018

PROCEDURE FOR EJECTING A TENANT

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Tenancy and Lease can be used interchangeably; however, Lease is used to refer to the legal relationship that exists when the Landlord (known as the Lessor) rents out his property to a tenant (Known as the Lessee) for more than three years. Tenancy on the other hand refers to when a property is rented out to the tenant by the Landlord for three years or less than three years.

Whether it is a lease or a tenancy, the rules governing the Landlord/Tenant relationship are essentially the same.

It is very often the case that sometimes a tenant refuses to quit the premises and hand over the keys to the Landlord even when the length of time given him to quit the premises has elapsed. Many a times, the tenant refuses to move out because he has nowhere else to go, at some other times, he refuses to move out because he feels that the Notice to Quit is undeserved, some tenants refuse to leave because they just do not feel like it. Whatever, the reasons for refusing to leave, this usually does not go down well with the Landlord who wants that tenant gone so he can rent out the place to another tenant or use his property for whatever he deems fit.

As infuriating as such a situation might be, the law frowns against extra-judicial means of ejecting such a tenant as that could amount to an illegality which could create problems for the Landlord. We would therefore outline the procedures which must be complied with in ejecting a tenant who has refused to hand over possession of the property to the Landlord and quit the premises.

1.    NOTICE TO QUIT
The very first step is to issue a valid notice to quit. We have discussed what a valid Notice to quit must contain earlier in our Land and Property series.
It is important that the Notice to Quit gives the tenant the length of notice required by law. This affords the tenant an opportunity to make plans for another accommodation before he finally quits the premises.

The law permits the Landlord and the tenant to determine the length of notice that each would be required to give if either of them wants to bring the tenancy to an end. It is therefore important that when the parties are negotiating the terms of the tenancy agreement, that the length of notice to be given by each party is properly spelt out.

In determining the length of notice to be given, the parties should take into consideration the following factors:

•    The relative ease or difficulty with which one can secure an accommodation, taking into cognisance the location of the property.
•    The purpose for which the property is leased: for example, if the leased property is used as a school, then the tenant would need a considerably longer notice than if the property is used for residential purpose.
•    The nature of the property: in a city like Lagos, it would be quite easy to get flats and duplexes unlike some less developed parts of the country where it might be a bit more difficult. So, the nature of the property should be considered in relation to the location in other to determine the ease with which a similar property could be found. This would affect the length of notice to be agreed upon.
•    The Rent payable should also be considered in determining the length of notice to be given. One should be able to ask; would I be able to find a property for the same value easily?
In the event that the parties fail to stipulate the length of notice that would be required in order to terminate the tenancy, then the length of notice as stipulated by the law would apply.

In Lagos State, the following length of notices would apply:

1.    Where the tenancy is such that the terms of the tenancy are undefined, that is where the Landlord just allows the tenant use his property on the understanding that either of them can terminate the tenancy at any time, then, the length of notice required is one week. The law refers to this as Tenancy at Will.
This type of tenancy is very common with(but definitely not restricted to) uncompleted premises; that is where a property is still under construction , the tenant just moves in and begins to use the premises, the Landlord on discovering this might just allow such a person continue to use the property. When he is ready to terminate that tenancy, he just needs to give a week’s notice.
2.    A monthly tenant just needs a month’s notice to terminate the tenancy. Where the tenant is in arrears of rent for six months, he is not entitled to any notice to quit.

3.    A quarterly tenant: that is a tenant who pays rent every three months is entitled to three months’ notice. Where the tenant is in arrears of rent for a year, he is not entitled to a notice to quit.

4.    A half yearly tenant; that is a tenant who pays rent every six months is entitled to three months’ notice. Where the tenant is in arrears of rent for a year, he is not entitled to a notice to quit.
5.    A yearly tenant; that is a tenant who pays rent every year is entitled to six months’ notice.

6.    Where the tenancy is for a fixed term; that is for a certain number of years or even months then it will not be necessary to issue a notice to quit to such a tenant when the fixed term ends. When for example, a tenancy is for four years, at the end of the four years, the tenancy ends and the tenant is not entitled to a notice to quit.
The nature of a tenancy is determined by the time when the rent is paid or when it is demanded. So if the rent is to be paid monthly, then that is a monthly tenancy.

2.    7 DAYS NOTICE OF OWNER’S INTENTION TO RECOVER POSSESSION
When after service of the Notice to quit, and the length of notice stipulated in the Notice to quit expires and the tenant or any person in possession of the property fails to give up possession of the property, then the Owner of the property (Landlord) is required to serve another notice on such a person. This notice is known as 7 Days Notice of Owner’s Intention to Recover possession.

This Notice is to inform the tenant that if after 7 days , he is still in possession; that is, if he refuses to hand over the keys and move out, that the Landlord will take the matter to court and request the court to help him eject the tenant, since he has refused to move out on his own.

If after the 7 days stipulated in the notice the tenant still refuses to move out, then the Landlord can apply to the court for Recovery of his property/premises from the tenant. If the Landlord’s case has merit, then the court would issue an order ejecting the tenant.

Most times, some Landlords get angry at the tenant for refusing to move out after the expiration of the notice and they resort to ejecting the tenant forcefully, by either throwing out his possessions, removing the roof, cutting off power supply to his house, locking the gate, and all sorts of things, just to force the tenant out.

The court has frowned at such practices and has warned that Landlords should comply with the procedure of ejecting tenants under the law in order not to create problems for themselves. This is because when the law is not complied with, then the Landlord could be liable for trespass to property and might have to pay damages to the tenant.

It is usually best to get a lawyer to handle the process of ejecting a tenant, when the need to do so arises in order not to run afoul of the law.

 

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