22/05/2017
Lawyers’ Useful Tips: Do Not Issue A “NOTICE TO QUIT On Expired Tenancy
Lawyers’ Useful Tips: Do Not Issue A “NOTICE TO QUIT on Expired Tenancy
Posted on by Peters Ifeoma
Please read below an expert’s advice on determination of an expired tenancy:
Most Lawyers inadvertently issue Notices to quit even after the tenancy has been determined by effluxion of time.
Emeka, my friend, is a yearly tenant. His last payment of rent for one year was made on the 2nd of January, 2016. His rent expired on the 1st of January, 2017. However, he still resides in the rented apartment and wouldn’t leave because his landlord has not served him with a Notice to quit. He poses as someone who knows his right and as such believes that he cannot be evicted from the apartment without first getting a 6 months’ notice from his landlord.
DETERMINATION OF TENANCY
A tenancy is determined by the effluxion of time: where the period for which rent was paid has elapsed. For instance, Mr. Ako rents a duplex from Mr. Otuk for one year; from 1st January, 2016 to 31st December, 2016. At the expiration of the said one year, the tenancy is determined. Hence, from 1st January, 2017, the tenancy is deemed expired/determined.
By Service of the proper notices: where the tenancy is still subsisting, and the Landlord is not minded towards renewal or further renewal (for renewed tenancy), the Landlord
WHEN IS A NOTICE TO QUIT NECESSARY?
Service of a notice to quit is not always a condition precedent for recovery of premises. A notice to quit is ONLY necessary for the determination of a tenancy, where the tenancy has not been determined.
WHEN IS A NOTICE TO QUIT IRRELEVANT?
Where a tenant is in arears of rent for a specific period provided by statute, a Notice to quit becomes irrelevant.
Once the tenancy has been determined by effluxion of time, a Notice to quit becomes irrelevant. Thus, from the day the tenancy expires by effluxion of time, the landlord is NOT under any obligation whatsoever to issue the tenant a notice to quit. The Landlord is only required to serve the statutory 7 days notice of his intention to recover possession on the tenant. See the case of SPLINTERS (NIG.) LTD V. OASIS FINANCE LTD (2013) 18 N.W.L.R. (PT. 1385) 188 AT 220, where the Court of Appeal per IYIZOBA, J.C.A. held thus:
“I have carefully considered the submissions of counsel, in the case of IHEANACHO V. UZOCHUKWU (1997) 2 N.W.L.R. (PT. 487) 257 AT 268-270, H-A, 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 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 law in terms of the judgment of the court in the action.”
See also AYINKE STORES LTD V. ADEBOGUN (2008) 10 NWLR (PT. 1096)612. As clearly set out in IHEANACHO V. UZOCHUKWU(Supra), it is only when the tenancy has not expired that there will be need to determine same by notice to quit. It is obvious that if at the time the landlord seeks to recover his premises, the tenancy had already expired, it is reasonable to assume that there will be no need for a quit notice. All the Landlord would be required to serve on the tenant would be the statutory 7 days notice of intention to apply to court to recover possession of the premises. … the learned trial judge clearly erred in holding that services of C1P and C1Q are superfluous, more especially, in the case of notice to tenant of owner’s intention to recover possession generally known as 7 days notice. That particular notice must in all cases be served. It is only the quit notice that may be dispensed with when the tenancy has validly expired by effluxion of time.”
From the forgoing, it is vivid that once the tenancy has expired, a Landlord does not need to serve the tenant with a notice to quit. All that is required is service of the 7days notice on the tenant. Note that a landlord does not have to wait for months before serving this notice. Like my friend whose tenancy expired on 2nd January, 2017, it is legal to serve him with a 7days notice on the 3rd of January, 2017.
By Holo Abolore Herbdulmorejeed
