Payment Of Rent After Notice To Quit Has Been Served

WHAT IS A NOTICE TO QUIT

A notice to quit simply refers to the document which determines a tenancy relationship. A notice to quit calls on the opposite party to vacate the premises on or before a certain date. It is the most important notice in the process of recovery of premises. A notice to quit must contain the following details for it to be valid:

1. The name of the landlord or his authorized agent.
2. The tenants name
3. The nature of the tenancy
4. The fact that the addressee holds the premises of the landlord as tenant.
5. A brief description of the premises
6. The date the tenant should quit and deliver up possession.

 

It is pertinent to state that at the expiration of the notice to quit, the landlord is expected to serve on the tenant a notice of owner’s intention to apply to recover possession. However if after the service of the Notices the tenant refuses to give up possession of the premises, the landlord can commence an action for recovery of premises. Furthermore, notice to quit may be served once there is a breach in the terms agreed upon by parties. For example, a landlord can decide to terminate the tenancy of a tenant that does not pay his rent as at when due by serving a notice to quit on him. The question to consider now is whether acceptance of rent after a notice to quit is a waiver of the valid notice.

 

The position of the law is that acceptance of a new rent is not a waiver of the notice to quit. It might best be evidence of an intention between the parties to create a new tenancy and has no effect on the notice to quit. See Udi V. Izedonmwen (1991) 2 NWLR (Pt 132) 357, where it was held that acceptance of rent after a notice to quit is not a waiver of the valid notice. Furthermore in Akpiri V. Oluwa (1972) 9 CCHCJ 17, it was held that the first valid notice to quit remained valid irrespective of the time lag and any claim for possession of the premises on the second notice to quit was a nullity.

MESNE PROFIT

Mesne literally means intermediate or middle, profit is another word for pecuniary value. Thus mesne profit refers to the intermediate pecuniary value of premises between the time when the tenancy terminates and the time when the tenant yields up possession. (Law of Landlord and Tenant by Emeka Chianu 2^nd edition 2010).

According to the Black’s Law Dictionary, 9^th edition, mesne profit is defined as the profit of an estate received by a tenant in wrongful possession from the date his tenancy is determined to when he gives up possession of the premises. Furthermore In Osawaru V. Ezeiruka (1978) 6 SC 135, Aniagolu JSC further elucidated on the term when he stated:

The word ”mesne” is a latin word which means middle, intervening or intermediate….And so a landlord in claiming for mesne profit is claiming for the profit intermediate from the date tenant ought to have given up possession and the date he actually gives up possession.

It is important to note that arrears of rent is different from mesne profit.  Arrears of rent comes to existence where the tenant neglects to pay his rent for a term at the expiration of a previous rent during the subsistence of the tenancy while mesne profit starts to run when the tenancy has been terminated and the tenant still holds possession. See Shettimari V. Nwokoye (1991) 9 NWLR Pg 63.

Where the tenancy is periodic, mesne profit are recoverable from the date the tenancy is validly determined. To this end, if in an action to recover possession of the premises subject of a periodic tenancy it is found that the tenancy has not been validly determined, the claim for mesne profit will fail. See Oluwole V. Adenaike (1971) 2 ALL NLR 249.

Mesne profit may also be claimed from the date a term certain effluxes and the tenant holds over the premises against the landlords will either as a statutory tenant or a tenant as sufferance.

 

According to S. 31 of the Lagos State Tenancy Law, where mesne profit or a sum for the use and occupation of the premises are claimed, the claim shall show the rate at which such is claimed and where it is proved, judgment shall be entered for the amount so proved. To this end, mesne profit must be proven and judgment must be given for the amount proven.

However in Rivers state, the law does not make an express provision for the concept of mesne profit but only provides for damages for the use and occupation of the premises. Section 101 of the Landlord and Tenant Law Cap 75 Laws of Rivers State 1999 provides thus;

“Subject to this law or any other written law in force in the state and in the absence of an express subsisting tenancy, where one person uses or occupies property of another by his permission or sufferance, there shall be implied a promise by the user or occupier to make a  reasonable payment for such use or occupation.”The effect of Section 101 of the law is to the effect that a claim for mesne profits is impliedly subsumed under the concept of damages for use and occupation

In an action for recovery of possession of premises, the mesne profit is dependent on possession itself; this is because a claim for mesne profit is essentially predicated upon trespass. Thus, mesne profit is not normally awarded regarding lawful occupation as a tenant. This means that where the prayer for possession is denied, the landlord is not entitled to any mesne profit.

Furthermore, upon obtaining a valid court order where the court has entered judgment against a tenant, the landlord may enforce such judgment by executing the properties of the tenant. This means that the judgment empowers the sheriff of the court to seize the properties of the tenant and sell them in order to raise the judgment sum which is often the arrears of rent, mesne profit and in some cases, the cost awarded to the landlord for the inconveniences he suffered.

In conclusion, the law on payment of rent after a valid notice to quit might be too strict. In our opinion, the purpose of issuing a notice to quit in the first place is to make a tenant pay the rent he owes. To this end, his payment of the said rent should invalidate the notice to quit. Furthermore, there should be a clear distinction between mesne profit and damages for use and occupation of premises in the Landlord and tenant law of Rivers State.

We in Property Advisory Network has observed that most times tenants who are in breach of the covenants in their tenancy agreement  are in the habit of threatening the landlord that they could stay as long as they want in the house without paying ,using numerous technicalities employed by the lawyers to delay the case in court. While we advice the Landlord to follow due process in recovering his/her premises, we also advise the tenant to know that there is no free lunch in landlord and tenant relationship. Every day spent in the property while the matter is going on in the court must be paid for upon conclusion of the matter.

 

The issue for consideration here for our law makes is the increase of rent while the matter lasts in court. Experience has  shown that some landlord and tenant cases may last in court for as much as seven to ten years and in this instance the tenant is still in occupation and at the end of the matter, mesne profit would be calculated at the prevailing rent before commencement of the matter in court. In this instance the tenant denies the landlord the normal periodic increases in rent which is normal in landlord and tenancy relationship. We feel that this is an undue advantage for the tenant over the landlord.

 

The Legislature should look at what happens when the matter stays for a long time in court and the prevailing rent is no more reasonable at the determination of the case in court. The law should provide for appropriate variation/increase in rent as shall be tenable in properties of same grade and area to be reflected in the mense profit so long as the tenant was in occupation during the period in question. In this way both the landlord and the tenant would be equitably protected.