We previously discussed the rights and responsibilities of both landlords and tenants with the tenant being required essentially to pay the rent and keep the premises in good repair. Where the landlord is in breach the tenant’s simplest recourse is to terminate the tenancy and find somewhere else to go with his security deposit being returned to him without too much trouble.
The landlord is in a much more difficult position and we attempt to deal with the rights of the landlord to evict a tenant when that tenant proves to be a bad bargain.
The process of eviction commences with the issuing of a notice to quit. Usually the period of notice is the same as the period of the tenancy, for example, a monthly tenancy requires notice of one month, a weekly tenancy one week and so on.
The notice should be given at the natural termination of the tenancy period so that if the tenancy is a monthly one and the landlord wishes to give notice to the tenant to vacate the property by the end of August, the notice must be given by the end of July. At the end of the notice period and the tenant remains in occupation of the property he is deemed to be a tenant “holding over”.
Where the tenancy is for a period of less than seven years and the tenant continues to hold over after the notice to quit has expired, section 35 of the Landlord & Tenant Act, Cap. 230 of the Laws of Barbados requires the landlord to serve on the tenant a further notice of the landlord’s intention to apply to the court to recover possession of his property.
The grace period specified in that notice is 14 days within which the tenant must deliver up possession to avoid being sued in court. The notice may, pursuant to section 36 of the act, be served either personally on the tenant or by leaving it with some individual who appears to be resident at the property.
In the event that after the 14-day period has expired the tenant still does not give possession of the property to the landlord, then the landlord is well within his rights to file a claim in the magistrate’s court in the district in which the property is situated for recovery of possession.
The tenant may either deliver up possession to the landlord or appear before the court and explain why possession should not be given. Reasons for withholding possession from the landlord include the fact that proper notice was not given, that the person claiming is not in fact the landlord or that the landlord has not complied with the procedure as set out in the legislation.
Section 13 of Landlord & Tenant (Registration of Tenancies) Act, Cap. 230A precludes the court from “entertaining an application” for ejectment where the tenancy has not been registered with the Commissioner of Inland Revenue but in practise the hearing will be adjourned for the Certificate of Registration to be produced.
At the hearing of the matter where the landlord proves service of the notice to quit and notice of intention to recover possession, then the magistrate may order the issue of a warrant to secure the delivery of possession to the landlord and by virtue of section 35(3) of the act, a grace period of no more than two months can be granted to the tenant by the magistrate.
The landlord may consent to a longer period but usually by the time these matters actually reach fruition in the courts the tenant has been holding over without paying rent for nearly a year if not more. The warrant of the magistrate authorises the police to enter and give possession to the landlord or his agent on any day except Sunday, Good Friday or Christmas Day and only between the hours of 8 a.m. and 5 p.m.
Landlords are cautioned that the acceptance of rent once notice to quit has been served renders that notice null and void. Where the rent is in arrears the landlord may at the same time file a claim for such arrears together with a claim for mesne profits (for the use and occupation of the property after notice to quit has been issued).