Written by
Joy Edomobi
Associate
Self-help remains unlawful, however clear the arrears. A step-by-step account of the Recovery of Premises procedure and the costs of shortcutting it.
Discuss this matter →Self-help remains unlawful in the Federal Capital Territory however clear the arrears, and the notice regime is where most landlords lose matters they would otherwise win. The procedure is not complicated; it is simply unforgiving of shortcuts.
The two notices
Recovery of premises in the FCT proceeds in two stages, and both are jurisdictional. The first is notice to quit, terminating the tenancy. Its length depends on the character of the tenancy, not on what the written agreement says the parties agreed. A monthly tenancy requires a month; a yearly tenancy requires six months, and the notice must expire on the anniversary of the tenancy, not on a date convenient to the landlord.
The second is the seven-day notice of the owner's intention to recover possession. It cannot be issued until the tenancy has already been determined by the first notice. Serving the two together, or serving the second while the first is still running, is the most common defect we see, and it is fatal.
A landlord who compresses the notice period saves a month and loses a year.
Where the arrears argument goes wrong
Arrears do not shorten the notice period. A tenant in default is still a tenant until the tenancy is determined, and a tenant who has overstayed a valid notice is a statutory tenant with a right to be heard. The correct route to unpaid rent is a claim for arrears and mesne profits alongside the possession claim, not an attempt to treat the default as self-executing termination.
What self-help costs
Changing locks, removing a roof, disconnecting utilities or engaging agents to remove a tenant's belongings exposes the landlord to a claim in trespass and to damages that routinely exceed the arrears recovered. It also converts a straightforward possession claim into contested litigation in which the landlord is now a defendant on the counterclaim.
The sequence, in order
Establish the true character of the tenancy from conduct, not only from the agreement
Serve notice to quit of the correct length, expiring on the correct date
Allow it to run out completely before doing anything else
Serve the seven-day notice of intention to recover possession
File the claim, joining arrears and mesne profits
Done properly, an uncontested recovery in the FCT is a matter of months. Done impatiently, it becomes a matter of years.
This note is a general commentary on the law as at the date of publication. It is not legal advice and should not be relied upon in place of advice on your own facts. For guidance on a specific matter, speak to one of our lawyers.
