When your tenant refuses to pay rent (1)

Owning property is supposed to be an excellent way to earn
passive income. But there are many headaches that come with being a
property owner. Besides the regulatory requirements such as taxes
on the property and issues such as maintenance, an owner-landlord
must deal with the different personalities that come in the form of
tenants.

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.

Owning property is supposed to be an excellent way to earn
passive income. But there are many headaches that come with being a
property owner. Besides the regulatory requirements such as taxes
on the property and issues such as maintenance, an owner-landlord
must deal with the different personalities that come in the form of
tenants.

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.