EXPIRED TENANCY = NO NOTICE TO QUIT

I had to update this post to douse and give clarifications to the issues: whether the post envisages periodic tenancies especially in Lagos, and whether Nonpayment of rent can change the nature of a periodic tenancy.

Most Lawyers inadvertently issue Notices to quit even after the tenancy has been determined by effluxion of time.

Fejiro, my friend, is a yearly tenant. His last payment of rent for one year was made on the 2^nd of January, 2016.  His rent expired on the 1^st 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

1. 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 1^st January, 2016 to 31^st December, 2016.  At the expiration of the said one year, the tenancy is determined. Hence, from 1^st January, 2017, the tenancy is deemed expired/determined.
2. 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.  This is particularly in respect of periodic tenancies. Once a yearly tenant does not pay his/her rent as at when it becomes due for payment, the tenancy is automatically converted to a tenancy at will; which requires only the service of a 7 days notice of owners intention to recover possession. When I first put up this post, some Learned friends and Colleagues (particularly those practicing in Lagos) put up the argument that periodic tenancies MUST be determined by a notice to quit and that non payment of rent does not change the nature of the tenancy. NEWS FLASH! NON PAYMENT OF RENT AS AT WHEN DUE CHANGES THE NATURE OF A PERIODIC TENANCY, even in Lagos. This issue was considered by the Court of Appeal, Lagos, in the case of BOCAS NIGERIA LTD v. WEMABOD ESTATES LTD (2016) LPELR-40193(CA). The Court held thus:     " Cases of tenancy at will are common where a tenant for a fixed term holds over the property with consent of the landlord while negotiations for further lease are going on. The general rule is that if a tenant pays rent during this period, he becomes a periodic tenant, e.g. if he pays a year's rent, then he is a yearly tenant.In Odutola V. Papersack Nig. Ltd. (2006) 18 NWLR (Pt 1012) 470 SC, the landlord had permitted the tenant to stay on until 1982 on payment of money as compensation for use and occupation of a warehouse. The tenant stayed on until 1994 when the landlord commenced the action, Meanwhile, the tenant paid annually until 1994 when it fell into arrears in its payment. The landlord served a seven-day notice on the tenant on the ground that it was a tenant at will, and thereafter sued to recover possession and arrears for the sum payable for the tenant's use and occupation of the premises. The tenant argued that the tenancy was converted from a tenancy at will to a yearly tenancy by virtue of the annual payments it made. The trial Court held that it was a tenant at will, and that its tenancy was determined by the seven-day notice served by the landlord. This Court held that the tenancy was not properly determined, and allowed the Appeal. In unanimously allowing the appeal to it, the Supreme Court per Onnoghen, JSC, held thus : '- - -From the expiration of the extended tenancy of THORESEN & CO. (NIG) LTD, the original tenant of the 1st Appellant the Respondent was a trespasser on the property, However from the time the Respondent started to pay rent which was on yearly basis, and in advance a yearly tenancy by conduct of the Parties may have been created and continued in existence until when the Respondent stopped paying the rent as and when due and or failed to secure a tenancy agreement for the property - - -From the moment a year's rent became due and payable by the Respondent but remained unpaid, the yearly tenancy, if any, created by the conduct of the parties thereto came to an end by effluxion of time and the Respondent thereby became a tenant at will of the 1st Appellant by continuing in possession of the property. In law we describe the Respondent at that stage as holding over the property and in that capacity it became a tenant at will. The situation of failure to pay rent continued from 1991 to 1997 yet learned counsel and the Court of Appeal contend that there was a yearly tenancy, - - - - It is not disputed that a tenancy at will is determinable by seven days' notice of intention of the landlord to recover possession which was duly complied with in this case. Even if six months' notice was given it does not, per se, change the nature and legal character of the tenancy in issue".As we can see, in Odutola v. Papersack Nig. Ltd. (supra), the yearly tenancy was converted to a tenancy at will when the tenant stopped paying its rent."Per AUGIE, J.C.A. (Pp. 18-20,http://lawpavilionplus.com/summary/judgments/?suitno=CA%2FL%2F108%2F09&from=sjIo5vQR3pKO6LiapkwdILmwaRWLVg6PxDbZTuBRZUA%3D

• 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.”(Emphasis supplied).

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 2^nd January, 2017, it is legal to serve him with a 7days notice on the 3^rd of January, 2017.