Forfeiture

Question 1

What governs forfeiture?

Answer 1

Law of Property Act 1925

Question 2

What is forfeiture?

Answer 2

Where the landlord seeks repossession of the premises as a result of a tenants breach.

Question 3

When does forfeiture apply?

Answer 3

When there is an express right of re-entry contained in the lease.

Question 4

What notice needs to be served to seek forfeiture?

Answer 4

S146 Notice for all breaches except rent arrears.

Question 5

What does the notice need to contain?

Answer 5

1. The breach
2. The remedy (if capable)
3. Timeframe to compliance
4. Claim for compensation

Question 6

How can you use forfeiture for non payment of rent?

Answer 6

1. No S146 notice required.

2. Need to check the lease to see how long rent must be overdue by and formally demand the rent.

Question 7

What is the significance of the Sava vs Hussein 1997?

Answer 7

Determined a test for remedying a breach - if the original mischief can be removed from the breach then the breach will be capable of remedy.

Notice will be invalid if the LL fails to require the tenant to remedy a breach that is capable of remedy.

Question 8

What is the significance of the Leasehold Property (Repairs Act) on forfeiture?

Answer 8

Provides tenants with protection from forfeiture for disrepairs if they have a lease of a minimum term of 7 years and at least 3 years unexpired.

Question 9

According to the Leasehold Property (Repairs) Act 1938, what do you need to include on a S146 notice for breach of repairs?

Answer 9

Set out the tenants right to serve a counter notice within 28 days.

If the tenant serves a counter notice, the LL cannot commence forfeiture without leave of the court.

Question 10

What are the 5 grounds the landlord can rely on for consent from the court for Forfeiture in relation to disrepair?

Answer 10

1. Value of the reversion is substantially diminished
2. Immediate remedy is required to comply with legislation
3. Immediate remedy is required in the best interests of other occupiers
4. Immediate remedy will be relatively inexpensive now, compared with a greater expense if a repair is delayed
5. Special circumstance

Question 11

How can you action forfeiture if the tenant has not complied with the S146 notice.

Answer 11

Peaceable re-entry - Physically re-enter and exclude the tenant from the premises.

Court proceedings - most common, where the landlord served a claim for possession. Tenant will have right to remain in occupation until a possession order has been granted.

Question 12

What will the courts consider when the tenant asks for relief from forfeiture?

Answer 12

Down to the courts discretion.

1. Nature of the breach
2. Seriousness of the breach
3. Conduct of the parties
4. The value of the property and extent the damage caused
5. The losses suffered by the tenant if relief is not granted

Courts will generally decide in the tenants favour if the terms of the lease can be complied with

Question 13

When can a landlord waiver his right to forfeiture?

Answer 13

Once and for all breaches - if they have knowledge of the breach and does something to recognise continuation of the tenancy, the LL’s right will be lost.

Question 14

Is forfeiture still available as a remedy?

Answer 14

For payment of rent no, but for other breaches yes.