LEGAL NUGGETS (43): Question On Tenancy.By Adedotun Habeeb Adetunji LL.M (M.IoD), FCAI.

QUESTION ON TENANCY

Mr. A who is tenant to Mr. B, hereinafter referred to as the landlord let out his flat to Mr. A without a tenancy agreement. Mr A pays a certain amount yearly afterwards.

Mr A stopped paying rent in 2017 and still retain the premises. The landlord sought the services of a lawyer who issued a notice of owners intention to apply to recover possession only after the expiration of which he, Mr. A was charged to court.

The questions distilled from the above scenario are as follows:

1. Can it be said that the tenancy has been validly determined by the service of just owners intention?

2. Will not paying rent for 2 years makes Mr. A not entitled to a notice to quit?

3. Will the court give judgment for possession where the tenancy is not for a year certain or fixed term with just the service of 7days owners intention?

4. Can effluxion of time be used for a tenant whose rent expired and still holds over or a tenant who has a tenancy agreement with the landlord for a fixed term or one year certain?

ANSWER......

 1. No. Notice to Quit is required first.
2. No. Tenancy automatically renews itself being a periodic tenancy.
3. Definitely not.
4. Only for a tenant in a fixed tenancy.

ANOTHER ANSWER

Let me first say that some tenancy concepts must be restated clearly.

1) expiration of rent is not the same as determination of tenancy
2) Arrears of rent has its commencement point
3) the nature of the tenancy must first be ascertained to know what notice to issue
4) a tenancy must have expired or determined one way or the other before a Notice of Owners Intention is issued
5) holding over arises only after determination of the tenancy.

FURTHER CLARIFICATION

Deducing from the Above....
 Mr. A cant get possession in the circumstance of this scenario but can the court still avail him with the arrears of rent and mesne profit if it forms part of Mr. B's claim which remains  uncontroverted??

RESPONSE....... Good question. I had to take a minute to think this through.

Arrears of rent, I believe so. It’s a debt due to the Landlord under the Tenancy contract.

Mesne profits? I don’t believe so. Mesne profits don’t begin to accrue until tenancy is determined. It will fail with the claim for recovery of possession.

A wicked lawyer will argue that since the recovery of premises is the principal claim and everything else is ancillary, that the entire action should be invalidated. There’s authority that supports this.

However, I’ll argue that they are two separate although related claims. One for recovery of premises and one for recovery of debt.

Now, I can’t control what the Court will find in that regard but I believe my view to be good and correct law (as every lawyer does).

Obijiaku v Ofiah
Ayinke v Lawal
Ayinke v Lawal is on Mesne profits

Obijiaku v Ofiah is on Arrears of Rent being a separate claim independent of the determination of the tenancy.