Landlords remedies Flashcards
Breach of RENT covenants?
Forfeiture
- Bring lease to a premature end
Action for debt
- Tenant can be sued on its covenant to pay rent
- Can only recovered six years arrears
Distress and commercial rent arrears recovery
- Entiling a landlord to enter premises and take possession of goods at value
- Requires 7 CLEAR DAYS NOTICE that it will seize goods.
- Once notice has been serves, tenant can apply for it to be set aside, or for its execution to be delayed.
- NOT AVAILABLE IN RESPSECT OF MIXED USE OR RESIDENTIAL PREMISES
Breach of non-rent covenant?
Injunction
- Landlord could ask for an order to stop tenant breaching the lease
Forfeiture
- Brings lease to a premature end
Specific performance
- Landlord could ask the court for this equitable remedy
Damages
- A lease is a contract and if tenant is in breach – landlord can sue for damages.
Forfeiture on legal and equitable leases?
Legal leases
- There must be an express forfeiture clause – IT IS NEVER IMPLIED INTO A LEGAL LEASE
Equitable leases
- No need for an express forfeiture clause because a right to forfeit for non-payment of rent is implied into equitable leases
Forfeiture - exercising the right and waiver?
Exercising the right
- Either by
- Peaceably re-entering the property
- By obtain a court order
- In the case of pure business premises – landlord may forfeit by peaceable re-entry by changing the clocks
- Where premises are residential – landlord cannot forfeit without a court order – includes where the premises are mixed residential and commercial
Waiver
- If landlord wishes to forfeit it must not have waived its right to forfeit
- Landlord may waive the right to forfeit if
- It is aware of acts or omissions giving rise to right to forfeit and
- It does some unequivocal act recognising the continued existence of lease
Impact of waiver on continuing breaches
- Waiver only lasts until next day; the breach continues at which point the landlord can then choose to reject rent and forfeit the lease
Impact of waiver – non continuing breaches
- If breach is non-continuing such as sub-letting without consent – waiver is permanent
- Can never forfeit for that specific breach
- Rent is classes as a non-continuing breach
Forfeiture - non payment of rent?
- Before landlord can exercise right to forfeit for non-payment of rent to must have made a formal demand for exact amount of rent due – on the day when it becomes payable. UNLESS
- Lease expressly waives this requirement
- At least 6 months’ rent is in arrears and there are insufficient sizeable goods on premises to satisfy all arrears due
- Tenant can apply for relief – but at courts discretion
Before court order - If on landlords suing for possession, the tenant pays into court al arrears and costs before the trial, all further proceedings are stayed.
- At or after the court order
- Court has a discretion to grant relief p to allow the lease to continue on condition that arrears are paid
- When landlord has re-entered under a court order, application for relief must be made within 6 months of re-entry. Relief is usually given unless exceptional circumstances
Before court order?
- If on landlords suing for possession, the tenant pays into court al arrears and costs before the trial, all further proceedings are stayed.
- At or after the court order
- Court has a discretion to grant relief p to allow the lease to continue on condition that arrears are paid
- When landlord has re-entered under a court order, application for relief must be made within 6 months of re-entry. Relief is usually given unless exceptional circumstances
After peaceable re-entry?
After peaceable re-entry
- Of landlord forfeits a non-residential lease without a court order, the court has an inherent equitable jurisdiction to grant relief it
- The rend and landlord costs are paid
- And its is just and equitable to grant relief.
Forfeiture for breach of other covenants?
Forfeiture for breach of other covenants
- Other than non-payment of rent, before landlord can forfeit, they must serve notice upon tenant under s 146
- No prescribed from of notice but must
- Specify breach
- If capable of remedy require it to be remedied within a reasonable time
- Require the person to make compensation in money for breach if landlord requires such compensation
If capable of remedy – and tenant does not remedy it in time – landlord may proceed to forfeit either by peaceable re-entry or by obtaining a court order.
3 months as rule of thumb
If breach is not capable of remedy should give like 14 days to consider its position
Remedies for forfeiture?
Most breaches are technically capable of remedy provided landlord has no lasting damage, except assignment or sub-letting.
Relief
- S146(2) provides that tenant may in landlord action or in actions by itself apply to court for relief
- Tenant applies for relief under this
- Generally, depends on how wilful and blatant breach was and gravity of breach.
Tenant must apply for relief before court order is made
Where a landlord exercises its right to forfeit by peaceable re-entry relief can still be given under s146
Relief
LPA 1925, s 146(2) provides that the tenant may in the landlord’s action, or in any action brought
by itself, apply to the court for relief.
The court may grant or refuse relief as the court, having regard to all the circumstances, thinks fit.
Therefore, in cases of breach of covenants other than rent, the tenant applies for relief under LPA
1925, s 146(2).
It generally depends on how wilful and blatant the breach was, the gravity of the breach, the
landlord’s motives for wanting forfeiture, the damage to the premises and whether the breach
can be put right. Relief is usually given on condition that the breach is remedied and that the
tenant undertakes not to breach the covenant again.
2.5.5 Relief: if the landlord has exercised its right by applying for a court order
The tenant must apply for relief before the court order is made.
If (or once) the court makes an executed order for possession in favour of the landlord, no further
relief application is then available.
2.5.6 Relief: if the landlord has exercised its right by peaceable re-entry
Where a landlord exercises its right to forfeit by peaceable re-entry, relief can still be given under
s 146(2). This was confirmed by the House of Lords in Billson v Residential Apartments Ltd [1992]
2 AC 494 though, in the exercise of the court’s discretion, regard will be had to all the
Forfeiture for breach of repair covenant?
Forfeiture for breach of repair covenant
- Leasehold property repairs act 1938
- Applies to a covenant to repair in lease when lease is granted for at least 7 years and at least 3 years are still left
- Landlord SERVES A 146 NOTICE AND must inform tenant of its right to serve counter notice within 28 days
- If tenant serves a counter notice – landlord cannot proceed to claim forfeiter or damages without first obtaining leave of court.
- If the landlord serves notice and it relates to internal decorative repairs – tenant may apply to court and be wholly or partially relieved of liability due to extent court thinks tis unreasonable
Sub-tenants
- If headlease if forfeited any sublease will also be destroyed
- Subtenant ahs right to apply for relief from forfeiture.
- Matter of courts discretion
Ending a lease?
Effluxion of time
- Lease of fixed term comes or an end
- Different if have security of tenure
Notice to quit
- Method for determine a periodic tenancy
- For a yearly tenancy either side must give at least half a year’s notice to quit ‘other periodic tenancies must be full periods notice
Break clauses
- May allow a premature ending
Surrender
- Handing back f lease by tenant to landlord with landlords’ consent
Merger
- Tenants acquires landlords’ interest
