Forfeiture

Exercising forfeiture is a process rather than an act.

For breaches other than non payment of rent, the landlord normally serves a notice specifying the breach, requiring it to be remedied where it is capable of remedy, and requiring compensation. The tenant is given a reasonable period to comply. Only if they do not does the right to forfeit arise.

For non payment of rent, formal demand may be required unless the lease dispenses with it.

The landlord then re enters. In modern practice, and in Nigeria specifically, that means proceedings for possession rather than physical re entry, because self help against an occupier is unlawful whatever the lease says.

The tenant's answer is relief against forfeiture. A court has jurisdiction to grant relief, restoring the lease, typically on terms that the tenant remedies the breach, pays the arrears and meets the landlord's costs. Relief is discretionary and it is commonly granted where the breach is remediable and the tenant is willing and able to put it right.

A landlord must also be careful not to waive the right. Accepting rent after knowing of the breach, or otherwise treating the lease as continuing, can waive forfeiture for that breach.

The recovery of premises framework sits over all of this, and it is what makes Nigerian forfeiture a court process.

A landlord who wants possession must serve the correct notice for the tenancy or lease, follow with the notice of intention to recover possession, and apply to court. Only a court order executed by the appropriate officer removes an occupier lawfully.

That means a forfeiture clause does not permit a landlord to change the locks. The clause creates the right to end the lease; the statutory process is how possession is actually recovered. A landlord who reads the clause as authorising self help is exposed to claims in trespass, conversion and breach of quiet enjoyment, and Nigerian courts have awarded damages for exactly that.

Waiver is the second Nigerian trap, and it is the same one that arises in holding over. A landlord who knows of a breach and continues accepting rent may waive the right to forfeit for it. Where the landlord intends to forfeit, any payment received should be dealt with expressly and without prejudice rather than banked as rent.

For tenants, relief against forfeiture is a genuine remedy and it should be applied for promptly. A tenant who remedies the breach, tenders the arrears and applies quickly has a reasonable prospect. One who waits until possession has been executed has a much harder case.

Three ways a Nigerian letting comes to an end before its natural expiry.

Forfeiture is the landlord ending a lease early for breach, exercised under a reserved right of re entry, through possession proceedings, and subject to the tenant's right to seek relief.

A quit notice determines a periodic tenancy at the end of a period, without any breach being required. Its length depends on the type of tenancy, and it is the ordinary route for ending a monthly, quarterly or yearly tenancy.

Surrender is consensual. The tenant gives up the term and the landlord accepts, and the lease ends by agreement. It should be documented, particularly where there are outstanding obligations such as dilapidations.

A landlord dealing with a defaulting tenant should identify which of the three they are using, because the process, the notice and the tenant's defences differ completely.

Forfeiture depends entirely on the lease reserving the right. A landlord who did not include the clause is left with damages.

Relief against forfeiture also makes the remedy less final than it appears, particularly for non payment of rent, where relief is commonly granted on payment.

Waiver is easy to trigger and hard to undo, and a landlord who continued dealing with the tenant normally after learning of the breach may have lost the right.

And the process takes time. Between the notice, the proceedings and execution, a landlord is not recovering premises quickly, whatever the clause says.