Procedure, challenges and implications of recovery of premise practice in Lagos State

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BACKGROUND

There are several transactions involving land and interests in land (often referred to as ‘conveyancing’) obtainable within the Nigerian legal system. These include sale of land, gift of land, mortgage, lease, tenancy etc. For the purpose of this article, we will focus on tenancy transactions and the legal framework governing recovery of premises in Lagos State, the challenges and implications on the dynamics of landlord/tenant relationships.

Rights & Remedies

The rights of parties (both landlord and tenant) and remedies available to them in a tenancy/leasehold relationship are usually spelled out in a written agreement or deed duly executed by the parties, but it might happen that some rights whether, intentionally or otherwise, could be omitted. In other cases, parties may enter into the relationship without a written agreement. Notwithstanding the circumstance, the rights of parties in a tenancy/leasehold relationship are guaranteed under the applicable Recovery of Premises Laws.

Below are some of the most common rights and remedies available to parties in a tenancy relationship under the Lagos Tenancy Law, 2011

Tenant:

• Right to quiet and peaceable enjoyment of the premises including – right to privacy and freedom from unreasonable disturbance; exclusive possession of the premises subject to restricted access to landlord or his agent for the purpose of inspection or to carry out repairs; and right to lawful and reasonable use of common areas.
• Freedom from forceful re-entry and unlawful evictions;
• Right to reimbursement for improvements on the premises made with the written consent of the landlord.
• To receive valid notices determining tenancy;

Landlord:

• Right to collect rents and other applicable charges on the premises as agreed upon by the parties;
• Right to protect his reversionary interest over the premises;
• Right to recover the premises, arrears of rent and mesne profits through valid court processes.
• Right to review rent payable and or renew the tenancy according to agreement between the parties.

Procedure for Recovery:

a. Statutory Notices

Where a tenant is in breach of the terms and covenants in respect of the premises, subject to a contrary provision in a written agreement between the parties and service of valid processes, the landlord is entitled to institute an action in a court of competent jurisdiction for an order to recover possession of the premises, arrears of rent and mesne profits, where applicable.

In a situation where there is no stipulation as to the length of notice in the agreement between the parties, the law, in Section 13, further provides for the length of notice to be issued and served on the tenant as a condition precedent to be fulfilled before a landlord can apply to the court for an order for recovery. These notices are outlined below:

• In the case of a tenant at will, the law requires a minimum of a week’s notice.
• For a monthly tenant, one (1) month notice suffices;
• Three months’ notice for a quarterly or a half-yearly tenant;
• While a landlord must issue and serve a six (6) months’ notice for a yearly tenant.

Read also: Top 12 things you should know as a tenant in Lagos – Lawyer

It must be noted that the nature of a tenancy, in the absence of any evidence to the contrary, will be determined by reference to the time when rent is paid or demanded. It is also important to be aware that the Lagos Recovery Laws allow a landlord to determine a tenancy by issuing and serving the requisite notices and to apply to recover possession from a ‘good’ tenant, even where such tenant has not breached any covenants in respect of the premises. This situation would arise where the landlord needs the property for personal use or where the property is unsafe as to constitute a danger to human life or property and as such would require extensive renovations.

At the expiration of the notice to quit, the tenant becomes a statutory tenant holding over the premises pending a validly obtained order of court to give up possession. He enjoys the protection of the law so that the landlord cannot evict him arbitrarily or by force. Where a landlord forcibly ejects or attempts to forcibly eject a tenant from the premises, the landlord can be sued and will be liable in damages to the tenant for trespass and unlawful eviction. Such landlord may also be liable, in criminal proceedings, to pay a fine not exceeding N250,000 or a maximum of six (6) months imprisonment.

The landlord’s right to apply to court against a tenant refusing to give up possession will only arise at the expiration of the 7 days’ notice of intention to recover possession. Under the TL, on the expiration of the notice of intention to recover premises, if the tenant still fails, neglects or refuses to give up possession of the premises, then the landlord or his agent may cause an action to be filed at the appropriate court by way of summons as in TL6 in the Schedule to the Law; together with the particulars of claim.

b. Service

Under the Lagos TL in section 13-16, the statutory notices are to be served on the tenant personally; or by leaving the notices with an adult on the premises; by courier delivery; or by affixing the notice in a conspicuous part of the premises. For personal service, it must be noted that the law does not mandate an acknowledgement of service as long as the landlord can show that the relevant notices were duly served on the tenant and or occupier of the premises.

Where personal service is impracticable, the law allows the landlord or his agent to paste the notices in a conspicuous part of the premises to notify the tenant or occupier of the determination of the tenancy. There is a need to provide corroborative proof of service like a photograph of the pasted notices. Also, where the landlord opts to deliver the notices via courier, the courier is required to provide proof of service.

Statutory notice purporting to determine a tenancy may expire on the last day of the current term or any day thereafter. A notice issued to expire before the last day of the tenancy notwithstanding the length of time, will be invalid.

It must be noted that the law purposely exempts fixed tenancy from this provision. By implication, the common law rule still applies to fixed tenancies in Lagos. This means that in order to determine a fixed tenancy, the notice must expire on the eve of the anniversary of the current term.

Landlord/Tenant relationships

Chiefly among the many criticisms of the Tenancy and Recovery of Premises Laws, is that the State chose to legislate on properties it does not own or control instead of focusing on its constitutional objectives of providing affordable housing for its citizens and creating an enabling environment for businesses to thrive. Thus, enforcing the laws have proven a bit difficult due to minimal acceptance from the general public. When the Lagos Tenancy Law was enacted in 2011, there were concerns, especially from property owners in the state, who viewed the new law as inherently stifling because of its potential to interfere with their property and economic rights.

As is expected in a free market economy, stakeholders devised legal means to circumvent some of the provisions they perceived to be too restrictive. Experts have argued that the new law has failed to achieve its core objectives to regulate tenancy agreements and protect tenants from the whims of landlords. Instead, the law has created a more volatile housing market coupled with the crippling effects of global inflation on the national economy.

Landlords in Lagos now incorporate terms into the tenancy agreement to exempt them from the strict operation of the law. For instance, in order to circumvent the provisions of section 4 where the law prohibits advance rent in excess of one (1) year for a yearly tenant, a landlord might insist on entering into an agreement for a fixed term of 2 (two) years. This way, the landlord would be able to not only receive advance rent for 2 years, but also be able to avoid issuing the statutory 6 (six) months’ quit notice applicable to yearly tenancies. These practices have far-reaching economic implications for tenants that the law sought to protect in the first instance, the housing market and the economy as a whole so much so that decent rental premises are now unnecessarily overpriced and out of the reach of low-income earners, even though they make up over 60% of the national population according to the National Bureau of Statistics (National MPI 2022).

Another challenge created by the law is the onerous recovery procedure. The Recovery of Premises laws prohibits self-help and unlawful evictions. A landlord that employs unlawful/forcible means to evict a tenant from premises will be liable to the tenant for trespass and damages in a civil action in addition to criminal liability under the law. But at common law, tenants do not have this right. As much as it was frowned upon to use unlawful means to recover premises, where the landlord actually does re-enter forcefully, the tenant has no remedy in a civil action.

The law places a limitation on the common law rights of a landlord to summarily eject tenants and recover possession of premises. The Recovery of Premises laws require that the landlord issue and serve on the tenant a valid quit notice and an additional 7 days’ notice of intention to apply to court. The landlord can only approach the court after these notices have expired.

Olusola is a senior associate at the firm’s property law practice group.