(By udems)
Although, generally speaking, service of a valid Notice to Quit as well as the 7-Day Notice of Owner’s Intention to apply to court to recover possession, is a condition precedent to institution of an action for recovery or demised premises, there exist instances in which the service of a Notice to Quit may be dispensed with. Such instances include:
1. TENANCY/LEASE FOR A TERM CERTAIN
That is, a lease that has already provided for the termination date. See for example, section 13 (5) Tenancy Law, 2011 (Lagos). A fixed tenancy/lease expires by effluxion of time. In such lease, a clause like this exists: “In consideration of ……, the Sub-Lessor demises to the Sub-Lessee all that three-room bungalow together with its appurtenances, located at ……. to hold the same for a term of THREE YEARS CERTAIN, commencing on February 01, 2021 and ending on January 31, 2024, paying annually in advance the rent of …” Here, where there’s no renewal at the end of the current term, and the tenant/sublessee remains in occupation without the landlord’s consent, after 31/01/2024, all that the landlord/sublessor is obliged to give to the tenant is a SEVEN-DAY NOTICE of Owner’s Intention to Apply to Court to recover possession of the premises. Thereafter, the landord or his agent may proceed to file an application in court to recover possession and mesne profits for the duration of occupation after expiration of the tenancy/lease.
2. AN AGREEMENT TO QUIT
Where during the subsistence of a tenancy, there comes into existence a valid Agreement consented to by all parties, stipulating that the tenant is to vacate the premises on a particular date. This sort of Agreement to Quit usually happens as a result of an ADR process: negotiation, mediation, reconciliation, conciliation, etc. An example is where the house is sold and the new landlord decides to have all the tenants out. The best way to achieve this’s to meet with the tenants and on satisfaction of some agreed conditions, have in place an Agreement to Quit, that would see all the tenants leaving on or before a particular date, peacefully, happily, instead of giving Quit notices that may be met by legal resistance from some stubborn or legally enlightened tenants, thereby prolonging unduly the new landlord’s bid to have possession as quickly as possible. An Agreement to Quit may also happen between a landlord and a tenant as a result of reconciliation, resulting in an agreement to end the landlord-tenant relationship after a protracted no-love-lost between the duo. After the expiration of the date agreed for vacation of the premises, and unless there is a change to the agreement, if the tenant remains in possession, the landlord (now owner), before applying to court, only needs to give the tenant (now, the occupier) a SEVEN-DAY notice of owner`s intention to apply to court to recover possession, after which the owner may proceed to court to recover possession.
3. A MONTHLY TENANT IN ARREARS OF RENT FOR UP TO SIX MONTHS
See section 13 (2) Tenancy Law (TL), 2011, Lagos. If a MONTHLY tenant owes rent for SIX (6) months, there will be no need to serve him a NOTICE TO QUIT. His tenancy is deemed to have lapsed, and the owner can apply to court to eject him, after serving on him a SEVEN DAY`s notice of owner`s intention to apply to court to recover possession.
4. A QUARTERLY TENANT IN ARREARS OF RENT FOR UP TO 12 MONTHS
See section 13 (3) of the TL, 2011. If a QUARTERLY tenant owes rent for ONE YEAR, there will be no need to serve him a NOTICE TO QUIT. His tenancy is deemed to have lapsed, and the owner can apply to court to eject him, after serving on him a SEVEN DAY`s notice of owner`s intention to apply to court to recover possession — s. 13 (3).
5. A HALF-YEARLY TENANT IN ARREARS OF RENT FOR UP TO 12 MONTHS
See section s. 13 (3): If a HALF-YEARLY tenant owes rent for ONE YEAR, there will be no need to serve him a NOTICE TO QUIT. His tenancy is deemed to have lapsed, and the owner may apply to court to eject him, after serving on him a SEVEN DAY`s notice of owner`s intention to apply to court to recover possession — s. 13 (3).
6. A LICENSEE
A licensee does not require a QUIT NOTICE, but only a the notice of owner`s intention to apply to court to recover possession.
7. PRESENCE OF A PROVISO FOR FORFEITURE & REENTRY
See for example section 12, Tenancy Law, Lagos. The mere inclusion of this clause in a lease does not give the landlord an automatic right of re-entry. See DA ROCHAS v. SHELL (1938) 14 NLR 1; OLANIYAN v. SHOKUNBI (1997) 6 NWLR (PT 505) 447;
8. WHERE THE TENANT DENIES LANLORD’S TITLE
Here, the landlord can proceed to court to have the tenant out, notwithstanding non-service of a formal notice to Quit.
9. SURRENDER BY THE TENANT
Surrender has been defined as “a yielding up of the estate for life or years to him who has an immediate estate In reversion or remainder , wherein the estate for life or years may be done by mutual agreement between them”.
Can an Agreement to Quit (Supra) be properly treated as a form of surrender by the tenant? Surrender may be express or by operation of law.
In the case of joint tenancy, surrender is not effective unless made by all the tenants. This is because the interest in joint tenants is unseverable.
10 BY MERGER
Where the tenant retains the lease and the tenant later acquires the reversion, the lease or tenancy is deemed subsumed by the acquisition and thus terminated/determined/destroyed. See CHAMBERS V. KINGDOM (1878) 10 CH 631 for the conditions for a merger where a third party acquires both the lease and the reversion.
Thank you 🙏
Respectfully,
Sylvester Udemezue
(udems).
(21/02/2021)