Land - Landlord's Remedies and Ending a Lease

What are the landlord's options for tenant's failure to pay rent?

- can sue tenant for the debt

- CRAR

- forfeiture

What are the landlord's options for tenant's breach of other covenants? (repair, user or alterations)

- damages

- injunction

- specific performance

- forfeiture

- Jervis v Harris

Must right to forfeiture be expressly inserted into a lease?

legal leases = must be expressly inserted

equitable leases = possible to imply a right to forfeiture, but only for non-payment of rent

What is a waiver of right to forfeit?

- if landlord has knowledge of the breach and does some act to recognise the continuing existence of the lease

- e.g., continuing to accept rent

What are examples of continuing and non-continuing breaches?

continuing breaches = failure to repair, failure to insure

once and for all breaches = assigning/subletting without consent, non-payment of rent

- but for non-payment of rent, each month's non-payment of rent is treated as a further breach, and so right to forfeit arises again

Will landlord need to make a formal demand for payment of rent before forfeiture?

Yes, unless there is an express exemption from this requirement on the lease

- or if there are more than 6 months' rental arrears

When can landlord enter a property and change the locks without going to court?

- only possible for non-payment of rent for lease of commercial premises

Can the landlord threaten/use force to secure entry when forfeiting property?

No - to do so is a criminal offence

How should landlord forfeit property that is wholly or partially residential?

- possession proceedings at court

What is relief from forfeiture?

- court's discretion to allow the lease to continue

- usually granted if tenant pays arrears

At what points can tenant apply for relief from forfeiture for breach of rent covenant?

- before any court order is made

- within 6 months of a court order

- after peaceable re-entry

When must a s.146 notice be served?

must ALWAYS be served before forfeit for a breach of non-rent covenants

What must be included in a s.146 notice for it to be valid?

- specifies the breach

- requests compensation if the landlord wishes

- requests that tenant remedy the breach within a reasonable time (if tenant does this, landlord loses right to forfeit)

if notice does not comply with the above, will be void

What will the court consider when determining a remedy for the breach?

- would compliance with the s.146 notice + appropriate compensation rectify the harm caused by the breach?

- most breaches are capable of remedy, except breach of covenant not to sublet, and change to immoral or illegal user

- if the breach is incapable of remedy/is not remedied in time, landlord can proceed to physical re-entry for commercial premises, or to apply for a court order

When can tenant apply for relief from forfeiture for breach of any non-rent covenant?

- before any court order is made

- or after landlord has used right to peaceable re-entry

but cannot apply for relief after a court order is made (cf breach of rent covenant)

When will a tenant usually be granted relief for breach of non-rent covenant?

- if tenant can show they have in fact complied with covenants

- or that it would be reasonable for the lease to continue despite their breach

Court has broad power to grant relief

What additional information must the s.146 notice include when there is a breach of a repair covenant, and the lease is for 7 or more years with at least 3 years left to run?

- the notice must inform the tenant of its right to serve a counter-notice

- and if the tenant serves a counter notice, landlord cannot then proceed to claim forefeiture without the leave of the court

What is the effect of forfeiture of the headlease on any subleases?

if a headlease is forfeited, then any subleases cease to exist

- a subtenant can apply for relief even if the tenant cannot get relief

- if they get relief, this would be the court vesting the headlease in the sub-tenant on the terms the court sees fit