FAQs on the Rent Control and Recovery of Residential Premises Law of Lagos State by Olubunmi Solaja

This article is an extension of another piece from by the author, on the Tenancy Law of Lagos State 2011, https://www.lawyard.org/legal-articles/faqs-of-the-lagos-tenancy-law-2011/. This piece on the  Rent Control and Recovery of Residential Premises Law of Lagos State 1997 Cap R6, Laws of Lagos State, addresses the other areas in Lagos State not covered by the Tenancy Law of Lagos State 2011.

The Recovery of Residential Premises Law of Lagos State only pertains to premises whose annual rental value as of 1996 is not more than N250, 000.00. Also, premises within the provisions of exclusion as stated in section 1(3) of the Tenancy Law of Lagos State 2011 are exclusively under the provisions of the Rent Control and Recovery of Residential Law of Lagos State. The hyperlink above can be referred to.

The premises in the following areas are excluded from the provisions of the Tenancy Law of Lagos 2011, so are therefore under the Recovery of Residential Premises Law of Lagos State, that is; (i) Apapa (ii)Ikeja GRA (iii) Ikoyi (iv) Victoria Island.

However, a thorough look at the provisions of the Rent Control and Recovery of Residential Premises Law reveals that its scope extends to Lekki and its environs even though the Tenancy Law is silent on this in section 1(3) thereof. Some other parts of Lagos are also included in the law. This appears to not be in tandem with the provisions of the Tenancy law. These discrepancies’ may dredge up some legal arguments when they do come up.

The above having been said, these are the frequently asked questions on the Rent Control and Recovery of Residential Premises Law of Lagos State.

On Advance Rent: One major feature of the Rent Control and Recovery of Residential Premises Law is the payment of advance rent. While the Tenancy Law 2011 prohibits the payment of rent above the received rent, the Rent Control and Recovery of Residential premises Law does not.

According to the Rent Control and Recovery of Residential Premises Law, rent can be received more than the standard  rent, under the following conditions;

For One year Tenancy………………1/2 year rent in excess
For 6 months Tenancy……………….3 months in excess.

So for the above, no rent can be received or offered for more than 3 (three) months in excess.

On Rent Increment: No increment in rent can be more than 20% during the period of review.

 

On Jurisdiction: the Rent Control and Recovery of Residential Premises Law, allows that jurisdiction under the law is to a Tribunal, and not the Magistrate Court, however since there is no Rent Tribunal in function as at the time of writing , it presupposes that the Magistrate Court will have jurisdiction.

 

On Sub-Tenants: Another major provision in the Rent Control and Recovery of Residential Premises Law, which differs significantly from the provisions of the Tenancy Law, is the position of the sub-Tenant. In the Rent Control and Recovery of Residential Premises Law, a sub-tenant is deemed to be a tenant of the landlord.

 

However, in the tenancy law, a tenant will have to get the express permission of the Landlord to have a sub-tenant.

 

In the Rent Control and Recovery of Residential Premises Law, it says that a tenant that is not being expressly prohibited from sub-letting premises may sub-let and the person shall be deemed the tenant of the Landlord.

 

Now, the distinguishing difference between these two laws when considering a sub-tenant, is that, while the Tenancy Law (2011) requires that express written permission of Landlord is required for a sub-tenant to be regarded as the tenant of the landlord, for the Rent Control and Recovery of Residential Premises Law, it allows that; once the tenant is not expressly prohibited from subletting, then the person can sublet. However, this particular provision can open up some legal arguments.

 

When a tenant refuses to give up possession: The Landlord is to issue a notice to quit as in form B, C, D of the law, and if thereafter, the tenant refuses to give up possession, then a written notice as in Form E should be issued to the tenant.

 

Institution of Proceedings: (i) Claim for arrears of rent and mesne profit: The amount claimed under any writ or plaint for arrears of rent and mesne profit shall be treated as one claim.

 

Improvement of accommodation by tenants: This is the same position with the Tenancy Law 2011, the tenant has to ask and get permission from the Landlord before going ahead to improve on the premises to claim compensation.

 

Warrant of possession: This can be similar to the provisions in the Tenancy law which provides that possession for the premises may be given to the landlord, even though the counterclaim is yet to be settled.

 

Tribunal can allow the tenant to seek alternative accommodation: This is a provision under the Rent Control and Recovery of Residential Premises. However, the use of Rent Tribunal is no longer in operation in Nigeria. It remains unclear whether a Magistrate or any court with jurisdiction can allow a tenant to seek for alternative accommodation while the court case is ongoing.

 

Warrant of possession: This is only in force for (3) three months. Also, the issuance of a warrant of possession justifies entry on the premises, if the tenant refuses to give up possession after the issuance of a Writ of possession.

 

Service of Process: This provision of the Rent Control and Recovery of Residential Premises Law is a bit tricky, this write-up will try to examine the provisions of the law and juxtapose it with any other decided cases.

 

Fees to be paid as agreement fee and Legal Fee: Under the Rent Control and Recovery of Residential Premises Law, 5% of the rent is to be charged as an agreed fee. Also, the commission fee should be 5%.

 

Fixing of Rent: One particular benefit of the Rent Control and Recovery of Residential Premises Law is the fixing of rent. Premises are considered before rent can be fixed by the landlord, and the standard of the premises will determine the rent to be charged on the premises. This provision of the Rent Control and Recovery of Residential Premises Law is commendable.

 

The issue of service under the Rent Control and Recovery of Residential Premises will be further discussed below;

Considering the provisions of the Rent Control and Recovery of Residential Premises Law, in Section 28 thereof, there seems to be no distinction between personal service and Substituted Service.

The Provisions of the above law, states that the Statutory notices for recovery of properties can be served personally or if not possible by pasting same on the last known address of the Defendant and same will be regarded as a proper service.

Further, in the case SPLINTERS NIG. LTD & ANOR V OASIS FINANCE LTD, the court decided on the effect of service under the Rent Control and Recovery of Residential Premises as follows;

“Learned Counsel for the Appellant has rightly submitted that service of notices must be personal on the tenant or occupier of the premises, or where not possible by posting…NZEKWU V NZEKWU (1989) NWLR (PT. 104) 373, (7989) LPELR-2739 (SC).

In considering the wordings of section 28 of the Rent Control and Recovery of Residential Premises Law, it makes provisions for service by posting, but this issue will be better appreciated when all the wordings of section 28 are fully considered before arriving at a decision.

It is apt at this junction, to consider the Lagos State Magistrate Court Rules 2016, which is referenced in section 28 of the Rent Control and Recovery of Residential Premises Law of Lagos State.

Section 28, says that the Lagos State Magistrate Court Rules should be considered when the issue of Service arises. It is therefore pertinent to consider Order 5 of the Lagos State Magistrate Court Rules, which relates to the issue of service, it states clearly how service is to be effected, either personally or by substituted means, and the mode of such service.

Order 5 (Rule 1-4) is to be considered in this case. Also, it is germane to consider the provisions of Order 5 Rule 5, which gives effect to how the provisions stated in Rule 1-4 should come into effect.

Sub Rule 5 of the Lagos State Magistrate Court Rules 2016, says;

“The provisions of these Rules, regarding mode of service, shall apply to any process of whatever description issued by a Magistrate Court”.

In the writer’s humble opinion, it is pertinent to consider, whether a 7 days’ Notice of Owners Intention to Recover Possession is statutorily issued by a Magistrate Court or by the Landlord or his appointed Solicitor.

It is obvious that it is not the Magistrate that issues a 7-Days’ Notice of Owners Intention to Recover Possession; it is the Landlord or its agent that issues a 7-days’ Notice. Section 7 of the Rent Control and Recovery of Residential Premises is referenced on this issue.

Also, of important consideration is Order 5 Rule 6 of the Lagos State Magistrate Court Rules on who may effect service, in the proviso of the said Order 5 rule 6, it says that;

“Provided that service of any Notice of determination of tenancy or of intention to recover possession under the Recovery of Premises law may be served by the Landlord or his agent as if he were a Bailiff.”

It is an obvious fact in law, that statues should be given their ordinary and literal interpretation. In the case of PETROLEUM TRAINING INSTITUTE & ORS V JULIANA on the interpretation of the statute, the court said;

“It has earlier been stated in this judgment that in the IBWA case (supra) the Supreme Court stated to the effect that the fundamental rule of interpretation of the statute is that where the words used are clear and unambiguous, they should be construed as they are, and given their ordinary plain meaning…..BABTUNDE V PAN ATLANTIC SHIPPING TRANSPORT AGENCIES LTD (2007)N ALL FWLR (PT. 1721).”

Giving the literal meaning to the provisions of the Magistrate Court Rules stated above, two things that are obvious and worthy of consideration, are;

That the rules of service stated in Order 5 relates to processes of whatever description issued by a Magistrate Court.
The proviso to Order 5(6) states that the statutory Notices of possession of premises can be served by the Landlord or his authorized agent as if it were a bailiff.

Since, a statutory Notice is issued by a Landlord himself or his authorized solicitor, and not by a Magistrate, should the provision for service of process as provided for under Order 5 of the Magistrate Court Rules then be followed or the provisions of Section 28 of the Rent Control and Recovery of Residential Premises Law of Lagos State?

Further, under Order 5(1) sub-rule (1) of the Magistrate Court Rules, it says;

“Subject to the provisions of any law or Rule”. Is it then not proper to consider the provisions of section 28 of the Rent Control and Recovery of Residential Premises Law, and give it its ordinary meaning and juxtapose it to the proviso of Order 5(1)(1) of the Magistrate Court Rules?

Considering again the provisions of the Order 28 of the Rent Control and Recovery of Residential Premises Law, it says;

“If the Defendant cannot be found….a copy of the process shall be pasted on some conspicuous part of the premises sought to be recovered and such pasting shall be deemed good and proper service on the Defendant.”

The above should be considered logically, taking a close observation of the above, is there anything that makes provisions for an order of court before such Notice can be served by pasting? Not so.

BY: OLUBUNMI SOLAJA.

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