Six (6) Month’s Notice To Quit: A Privilege; Not A Right
By Ikechukwu James Orji (LL.B)
Notice to quit is very important and a condition precedent to the commencement of proceedings for recovery of premises in a court of law, unless in situations where the tenancy has already been determined. The role of notice to quit is to formally determine the tenancy agreement. There have been controversies as regards the length of notice to quit which is to be issued to the tenant where the needs arise that the landlord intends to recover possession of his property. Lessees or Tenants have over the years mistaken the Six (6) month’s notice to quit as a right that they are entitled to and any notice less is seen as a contravention of this right. In other to reconcile these controversies, the Tenancy Law of Lagos State will be used as the laboratory rat for this exposition. It is important to note that the Tenancy Law of Lagos State (2011) is pari materia with the Tenancy laws of various states with little or no difference, but pertaining to this discuss there is no difference with any of the tenancy laws of the various states.
TYPES OF TENANCIES AND LENGTH OF NOTICE TO QUIT AS PROVIDED IN THE LAW
The Tenancy law of various states of the federation has in them different kinds of tenancy; monthly tenancy, quarterly tenancy, half-yearly tenancy (only provided in Lagos State) and yearly tenancy. The most prominent of them all in tenancy agreements in Nigeria is the yearly tenancy which runs from one year into the next year; the tenant is afforded the opportunity to renew his or her tenancy and this relationship continues until there is a need to terminate the tenancy agreement.
According to the provision of Section13(1) of the Tenancy Law of Lagos State (similar provisions are made in section 8 of the Recovery of Premises Act, Abuja): “Where there is no stipulation as to the notice to given by either party to determine the tenancy, the following shall apply-
A week’s notice for a Tenant at will;
One (1) month’s notice for a monthly tenant;
There (3) months’ notice for a quarterly tenant;
There (3) months’ notice for a half-yearly tenant; and
Six (6) months’ notice for a yearly tenant”
SIX (6) MONTH’S NOTICE TO QUIT AS A PRIVILEGE
A right simply put is something that every person is born with and is inalienable, which means that it cannot be given, taken away, or denied by anyone. Privilege on the other hand is something that needs to be earned or worked for. Privilege can be taken away. Most often tenants have had the misconception that the Six (6) month’s notice to quit as provided under the laws is a right which they must be given and it cannot be taken away from them. They have this erroneous idea that the Landlord or Lessor must issue a Six (6) month’s notice to quit before he can recover his property, which is not the position of the law.
The provision of Section 13(1) Lagos State Tenancy Law that “Where there is no stipulation as to the notice to given by either party to determine the tenancy…” meaning that the provision is subject to the express agreement of the parties. That is, the parties in their agreement can decide to reduce the length of the notice or even increase it. The agreement of the parties supersedes the provision of Section 13 (1) of the Lagos State Tenancy Law. Therefore, the six (6) months’ notice to quit is a privilege that can be taken away by the express agreement of the Lessor and the Lessee (i.e the landlord and tenant). In tenancy matters, just like every other contractual relationship, parties are bound by their agreement. As stated in A.P v Owodunni (1991) 8 NWLR (pt. 210) pg 414; the courts always avoid the habit of rewriting the agreements for parties to any contract.
Section 13 (1) of the Lagos State Tenancy Law is only applicable where there is no agreement as to the length of notice to be issued or where there is an agreement between the parties but the agreement does not accommodate notice to quit or where the parties in their agreement agree that the length of notice to quit should be six (6) months.
IMPLICATION OF NOT GIVING THE AGREED LENGTH OF NOTICE
Where there is an agreement as to the length of notice to be issued, the lessor must issue such notice else the said deficient notice to quit will be void and of no legal effect whatsoever. In Nnadozie v. Oluoma (1963) 7 ENLR 77 a one (1) month’s notice to quit was supposed to be issued but the Lessor issued a notice less than one month (29days) the said notice was held to be invalid.
However, where there is no agreement as to the length of notice to be issued, the provision of Section 13(1) of the Lagos State Tenancy law must be strictly adhered to else the notice will be held to be invalid. In A.P v Owodunni (Supra) at p.415, one of the issues that knocked the seat off the bottom of the plaintiff’s case was that the landlord issued an eight (8) days’ notice to quit as against the stipulated six (6) months’ notice to quit.
INSTANCES WHERE NOTICE TO QUIT CAN BE DONE AWAY WITH IN TOTALITY
Although the importance of notice to quit has been highlighted above, it is dispensable in certain instances, particularly in Lagos State. The following are the instances where notice to quit is not necessary:
a. In the case of a monthly tenancy, where a tenant is in arrears of rent for up to 6 months, the tenancy lapses by force of law, according to Section 13(2) of the Lagos State Tenancy Law, and the tenant is not entitled to notice to quit.
b. In the case of a quarterly or half-yearly tenancy, according to Section 13(3) of the Lagos State Tenancy Law, where the tenant is in arrears of rent for one year, the tenancy shall lapse.
c. In a fixed tenancy, by Section 13(5) of the Lagos State Tenancy Law, where a tenancy is determined by effluxion of time, then the tenant is not entitled to a notice to quit.
As yearly tenants enjoy the privilege of six months’ notice to quit, the tenant should make sure that it is expressly engraved in the tenancy agreement but where the contrary is stated in the agreement the tenant cannot apply to a court for the enforcement of the provision of Section13(1) of the Tenancy Law of Lagos State. Also where the Lessor or Landlord seeks to avoid the application of the provision of Section13(1) of the Tenancy Law of Lagos State he or she should state the length of notice he or she desires in the tenancy agreement.
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This is a good explanation and very simple to understand. However the word “fix tenancy” as used by the author at the last paragraph is not clear enough. Because when we say something is fix, it mean the tenancy agreement has fixed same. For instance if the Tenancy agreement fix the time that the tenant will use the property to be one year as most agreement used to have it, then can we say such is a fix tenancy?