Leases

Question 1

Key characteristics of a lease

Answer 1

(a) Legal interest in the property (proprietary interest); can bind successors in title
(b) Exclusive possession
(c) Specified term, and has certainty of term
(d) Tenant can use property as if they are the owner
(e) Parties to a lease are subject to statutory regulation
(f) Can be a lengthy document to draft and agree
(g) Will bind new owners of land. An interest that can in principle be assigned to third parties.

Question 2

Key characteristics of a licence

Answer 2

(a) Personal permission to be on land
(b) Not a proprietary interest
(c) Will not bind new owners of land
(d) Licensee has no control
(e) No exclusive possession
(f) Does not grant security of tenure
(g) Simple document to draft and agree

Question 3

Key characteristics of a tenancy at will

Answer 3

(a) Personal permission to be on land
(b) Not a proprietary interest. A tenancy at will is not a legal estate
(c) Will not bind new owners of land
(d) Either party may end the tenancy at any time (so no certainty of term)
(e) Does not grant the tenant at will security of tenure
(f) Simple document to draft and agree

Question 4

Security of tenure

Answer 4

Landlord and Tenant Act 1954

• Provides business tenants with security by providing that, at the end of their contractual term, the tenancy would continue unless given up by the tenant or brought to an end using statutory procedures
• Allows tenants to request a new tenancy on terms derived from the original lease, and at a rent fixed by the court if the parties can’t agree

Question 5

3 requirements for a tenant to acquire security of tenure under the LTA 1954, Part II

Answer 5

(1) Has to be a tenancy
(2) The tenant has to be in occupation of the property
(3) The tenant must be occupying for the purposes of a business
- ‘Business’ is given a very wide interpretation and includes a trade, profession or employment and includes any activity carried on by a body of persons, whether corporate or unincorporated.
- A members club or sports club counts
- It does not have to be a company, it could be a partnership, sole trader etc

Question 6

Effect of security of tenure

Answer 6

(1) Doesn’t matter if the lease expires on x date – you can stay on past that day
(2) Gives the tenant a right to apply to the court for a new tenancy

Question 7

Granting a lease without security of tenure

Answer 7

‘Contracted out’ leases - one where a procedure is followed whereby the tenant declares that they understand they are taking a lease without security of tenure rights.
- The shorter a lease, the more likely it will be ‘contracted out’

Question 8

Security of tenure requirement (1) - tenancy

Answer 8

• Must fulfil requirements established by Street v Mountford; exclusive possession and for a term absolute.
• ‘Tenancy’ excludes licences and tenancies at will, and some that are specifically excluded by s 43

Question 9

Excluded tenancies under s 43

Answer 9

• Tenancies of agricultural holdings
• Mining leases
• Service tenancies (a lease granted as part of a tenant’s employment e.g. a security guard’s flat)
• Fixed term tenancies not exceeding six months

Question 10

Security of tenure requirement (2) - Occupation

Answer 10

• The tenant must be the occupier of at least part of the premises
• If a tenant underlets all of the premises, it will lose the protection.
• The courts will consider the measure of control the tenant exercises over anyone else using the premises.

Question 11

Security of tenure requirement (3) - Business

Answer 11

• ‘trade, profession or employment’
• includes members clubs, businesses, but not a Sunday school
• Incidental residential use is acceptable, as long as operating a business is the significant purpose of the occupation

Question 12

Contracting out procedure

Answer 12

Must be carried out in accordance with the procedure set out in the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 (the Reform Order)

Question 13

Contracting out procedure - Warning notice

Answer 13

The landlord must serve a warning notice on the tenant at least 14 days before the tenant becomes bound to enter the lease.

Question 14

Contracting out procedure - Tenant’s declaration

Answer 14

• The tenant must sign either a simple declaration or a statutory declaration
• Which one is needed depends on whether the 14 days of the landlord’s warning notice can be complied with or not.
• If there are 14 days between the notice and the tenant becoming bound to enter the lease, a simple declaration can be used. If time is short, the 14 day period can be waived and a statutory declaration signed instead.
• The simple declaration states that the tenant has received and accepted the consequences of the landlord’s warning notice
• The statutory declaration made in front of an independent solicitor, is to the effect that the warning notice has been received and the tenant accepts the consequences.

Question 15

Contracting out procedure - Lease wording

Answer 15

The lease must contain:

(a) Wording that the parties have agreed to exclude security of tenure
(b) Reference to both the warning notice and the tenant’s declaration

Question 16

Tenant’s covenants

Answer 16

• Basic rule = a tenant may do all things that an owner of an estate can do unless the lease prohibits such actions
• Leases therefore are often drafted in a negative manner setting out what the tenant cannot do in tenant’s covenants
• If there is no mention of an action in a lease, the tenant is free to do it.

Question 17

Landlord’s covenants

Answer 17

• The landlord can also covenant to provide services, maintain common areas and insure the building
• Most common is the covenant for quiet enjoyment, a landlord’s covenant not to interfere with the tenant’s possession or enjoyment of the property
• Examples of breaches of covenant for quiet enjoyment: erection of scaffolding hindering access (Owen v Gadd), persistent intimidation of the tenant to induce him to leave (Kenny v Preen)

Question 18

Guarantor’s covenants

Answer 18

A guarantor may also be party to the lease and will covenant to guarantee payments that must be made and the performance of any other obligations.

Question 19

Forfeiture

Answer 19

• What happens in the event of damage and destruction by insured risks
• Clauses dealing with the exclusion of security of tenure provisions
• The right of the landlord to bring the lease to an early end in the event of tenant breach
• A right to remain in premises at the end of the lease term and to request the grant of a new lease

Question 20

Rights granted

Answer 20

• e.g. a right of way, easements
• rights excepted and reserved
• the landlord may need to reserve rights for itself to access the premises

Question 21

Other provisions

Answer 21

• rent review
• service charge
• a sum of money charged by landlord to tenants to cover costs of services to tenants

Question 22

Execution of a lease

Answer 22

To be legal, a lease must be granted by deed (LPA 1925, s 52) unless it falls within the exception of short leases of 3 years or less under s 52(2). A deed must comply with LP(MP)A, s 1.

Question 23

Prescribed lease clauses

Answer 23

Where you are granting a registrable lease, your lease must include a list of Prescribed Lease Clauses at the front.

Question 24

Four main covenants usually included in leases

Answer 24

(1) Repair
(2) Alterations
(3) User
(4) Alienation

Question 25

Repair covenants

Answer 25

• Under a general repair covenant, the tenant must keep the premises in the condition in which they would be kept by a reasonably minded owner, having regard to:
  (a) the character and type of premises at the beginning of the lease;
  (b) the age of the premises;
  (c) the express words of the covenant. (Proudfoot v Hart)
• A covenant to keep the premises in repair also entails an obligation to put them in repair first, if at the time of letting they were out of repair. This can be onerous.
• If the tenant simply wants to maintain the premises, the tenant can employ a surveyor to survey the premises and report on the state of repair prior to taking the lease. Then a schedule of condition can be annexed to the lease.

Question 26

Repair vs. renewal

Answer 26

If works constitute ‘renewal’ rather than ‘repair’, they will not fall within the tenant’s repair obligation.

Lurcott v Wakely

• The front external wall of a 200 year old house had to be taken down and rebuilt due to old age.
• The tenant was held liable under his repairing covenant. ‘Repair is restoration by renewal or replacement of subsidiary parts. Renewal, as distinguished from repair, is reconstruction of the entirety.’

Brew Brothers v Snax

• The wall’s condition was attributed to water seeping through defective drains. Underpinning works were necessary costing £8,000. The building as a whole was valued between £7,000-£9,500.
• Held that the necessary work did not fall within the scope of a repairing covenant

Question 27

Types of covenant

Answer 27

• Absolute covenant: The tenant is completely prohibited from doing something
• Qualified covenant: The tenant can ask the landlord for his consent although the landlord does not have to give it.
• Full qualified covenant: The landlord has to be reasonable if he is going to withhold his consent

Question 28

Test of ‘reasonableness’

Answer 28

International Drilling Fluids v Louisville Investments

• A landlord is not entitled to refuse his consent on grounds which have nothing to do with the landlord and tenant relationship
• e.g. it would not be reasonable for a landlord to refuse assignment on the basis that he did not like the proposed assignee

Question 29

Alterations

Answer 29

• Unless the lease stipulates otherwise, the tenant is free to carry out any alterations to the premises, subject to the legal doctrine of ‘waste’ which prevents alterations which would devalue the premises.
• However, the landlord will usually wish to control this by:
  (a) Limiting the type of alterations permitted (eg only allowing non-structural alterations and prohibiting structural alterations.)
  (b) Requiring the landlord’s approval or consent (licence) in order to do the alteration works.
  (c) Requiring reinstatement/removal of alterations at the end of the lease term.

Question 30

LTA 1927, s 19(2) - Qualified alterations covenants

Answer 30

• Where there is a qualified covenant against alteration then LTA 1927, s 19(2) implies into a qualified covenant against improvements a proviso that the landlord’s consent is not to be unreasonably withheld.
• It therefore converts a qualified covenant against alterations that amount to improvements into a fully qualified one.
• LTA 1927, s 19(2) only applies to ‘improvements’
• ‘improvements’ are to be construed widely as works which improve the premises from the tenant’s perspective (Lambert v FW Woolworth)
• LTA 1927, s 19(2) allows the landlord to require as a condition of giving consent:
  (a) payment of compensation for loss in value
  (b) reinstatement of the premises if reasonable at the end of the lease term
  (c) payment of the landlord’s expenses in giving consent.

Question 31

Covenants to which s 19(2) does not apply

Answer 31

• In practice, most commercial leases will allow certain alterations with the landlord’s consent not to be unreasonably withheld and expressly prohibit others (eg structural alterations). LTA 1927, s 19(2) does not apply to these covenants which are already fully qualified.
• LTA 1927, s 19(2) has no effect on absolute covenants.
• this does not preclude the landlord from granting a one-off consent to a particular structural alteration. This one-off consent would be documented in a Licence for Alterations. The landlord would be free to stipulate any conditions to such consent he wanted and these would not be subject to any test of reasonableness.

Question 32

User

Answer 32

• A tenant may be able to change the use of the premises depending upon the type of covenant.
• LTA 1927, s 19(3) applies to ‘qualified’ user covenants.
• It does not imply a reasonableness proviso into qualified user covenants. It does prevent a landlord demanding payment for granting its consent, unless the change of use also involves a change to the structure of the property.
• If the change of use does involve a change to the structure, the landlord can increase the rent or charge the tenant a lump sum (in the statute referred to as a ‘fine’ or ‘premium’)
• The landlord will be entitled to recover its costs and expenses involved in the application for consent.

Question 33

Alienation

Answer 33

• a method for the tenant disposing of the whole, or part, of their interest in a leasehold property.
• usually used to describe assignment, underletting and parting with possession although it does encompass charging/mortgaging the lease or surrendering it.
• Restrictions on alienation are very common in shorter leases.

Question 34

Landlord’s remedies

Answer 34

(1) Action for debt
(2) Commercial rent arrears
(3) Forfeiture

Question 35

Action for debt

Answer 35

• The tenant can be sued on his covenant to pay rent.
• A landlord can only recover six years arrears (Limitation Act 1980, s 19)
• However, if a tenant is unable to pay the rent, it is unlikely to be able to pay any damages

Question 36

Forfeiture

Answer 36

Bringing the lease to a premature end because of the tenant’s breach.

Question 37

Commercial Rent Arrears Recovery

Answer 37

• This requires a landlord to serve an enforcement notice on the tenant giving seven clear days’ notice that he will seize goods.
• Once notice has been served, the tenant can apply for it to be set aside or for its execution to be delayed.
• there must be a minimum of seven days’ rent arrears in order to use this procedure, and the remedy is not available in respect of mixed use or residential premises.
• The notice requirements clearly reduce the effectiveness of the remedy from a landlord’s perspective because tenants have the opportunity to remove goods from the premises and put them out of the landlord’s reach.

Question 38

Other landlord remedies

Answer 38

Injunction - e.g. to prevent an unauthorised sublease.
Specific performance - This is rarely ordered in respect of a repairing covenant; damages will usually be adequate.
Damages - The ordinary contractual rules as to the measure of damages will generally apply.

Question 39

The different ways a lease can end

Answer 39

(1) Effluxion of time
(2) Notice to quit
(3) Merger
(4) Forfeiture
(5) Break Clause
(6) Surrender

Question 40

(1) By effluxion of time

Answer 40

• usual common law way in which a lease for a fixed term comes to an end.
• however, at the end of the lease the tenant may have security of tenure

Question 41

(2) By a ‘break’ clause

Answer 41

A lease for a fixed term may contain a provision allowing either party to serve notice during its currency to bring it to a premature end.

Question 42

(3) By surrender

Answer 42

A surrender is the handing back of the lease by the tenant to the landlord with the landlord’s consent. This results in premature termination of the lease.

Question 43

(4) Merger

Answer 43

• This is the converse of surrender; the tenant acquires the landlord’s interest, thus becoming his own landlord, and the lease is absorbed by the reversion and destroyed.
• A deed of surrender is often entered into in practice to document the agreement. Sometimes a surrender premium will be paid by the tenant to the landlord too.

Question 44

(5) Notice to quit

Answer 44

• the method for determining a periodic tenancy.
• For a yearly tenancy, either side must give at least half a year’s notice to quit to determine the tenancy. Other periodic tenancies, for example quarterly, monthly or weekly, must be determined by a full period’s notice to expire at the end of a complete period.

Question 45

(6) Forfeiture

Answer 45

• a right for the landlord to terminate the lease prematurely for breach of covenant by the tenant.
• Also known as a ‘legal right of re-entry’ and a recognised legal interest in the land: LPA 1925, s 1(2)(e).

Question 46

Forfeiture - Legal Leases

Answer 46

• There must be an express forfeiture clause in the lease allowing the landlord to forfeit the lease in the event of breach of covenant (or insolvency) by the tenant. ​
• The right to forfeit is never implied into a legal lease
• in a legal lease, the forfeiture clause creates a legal right of re-entry (one of the five legal rights listed in LPA 1925, s 1(2)).
• A forfeiture clause is therefore also known as a re-entry clause.

Question 47

Forfeiture - Equitable Leases

Answer 47

There does not need to be an express forfeiture clause, because a right to forfeit for non-payment of rent is implied into equitable leases as one of the implied usual covenants (Hodgkinson v Crowe)

Question 48

Exercising the right to forfeiture

Answer 48

Forfeiture is exercised by the landlord by either:
- (a) peaceably re-entering the property; or
In the case of pure business premises the landlord may forfeit by peaceable re-entry ie by physically entering, changing the locks and putting up an unequivocal notice that he is forfeiting the lease.
- (b) by obtaining a court order
Where the premises are residential, the landlord cannot forfeit without a court order: Protection from Eviction Act 1977, s 2. This includes where the premises are mixed residential and commercial: Patel v Pirabakaran

Question 49

Forfeiture Procedure

Answer 49

Step 1: Has there been a breach?
Step 2: Is there a forfeiture clause?
Step 3: Has there been a waiver?

Question 50

Forfeiture - Waiver

Answer 50

• If the landlord wishes to forfeit, he must not have waived his right to forfeit.
• The landlord may waive the right to forfeit if:
  (a) he is aware of the acts or omissions giving rise to the right to forfeit; and
  (b) he does some unequivocal act recognising the continued existence of the lease.

Question 51

Examples of waiver of forfeiture

Answer 51

• accepting or suing for rent due after the breach; or distraining for rent due, despite knowing about the breach.
• waiver can take place inadvertently.
• For example, the landlord’s agent sends out a rent demand where the landlord (though not the agent) is aware of the breach (Central Estates (Belgravia) Ltd v Woolgar)
• Where there is a continuing breach (eg failure to repair), waiver only lasts until the next rent day, at which point the landlord can then choose to reject the rent and forfeit the lease
• If the breach is non-continuing (‘once and for all’), such as sub-letting without consent, waiver is permanent, i.e. once rent is accepted the landlord can never again forfeit for that specific breach.
• Non-payment of rent is classified as a non-continuing breach (London and County (A&D) Ltd v Wilfred Sportsman)
• This means that each individual non-payment of rent (ie each missed payment) is deemed to be a separate breach, creating a separate right to forfeit. So, even if the landlord permanently waives his right to forfeit for one incidence of non-payment of rent, this does not preclude the possibility that the landlord could forfeit for another non-payment of rent in the future

Question 52

Further step (4) for forfeiture for non-payment of rent

Answer 52

Step 4: Formal demand

• The Landlord must first make a formal demand for the exact amount of rent due on the day when it becomes payable, upon the premises, between the hours of sunrise and sunset unless:
  (a) The lease expressly waives this requirement, e.g. words such as ‘whether formally demanded or not’
  (b) At least six months’ rent is in arrears and there are insufficient distrainable (ie seizable) goods on the premises to satisfy all the arrears due

Question 53

Further step (5) for forfeiture for non-payment of rent

Answer 53

Step 5: Exercise the right
- Once the landlord has made a formal demand, or if a formal demand is not necessary, the landlord can proceed to forfeit by court order or peaceable re-entry

Question 54

Further step (6) for forfeiture for non-payment of rent

Answer 54

The tenant may then apply for relief from forfeiture. ‘Relief’ means the court’s discretion to allow the lease to continue and thereby end the forfeiture process.

Question 55

Forfeiture: Before the court order

Answer 55

• If, on the landlord’s suing for possession, the tenant pays into court all arrears and costs before the trial, all further proceedings are stayed.
• The legal authority for this depends upon whether the proceedings are in the County Court or High Court:
  County Courts Act 1984, s 138, in the county court;
  Common Law Procedure Act 1852, s 212 in the High Court, provided in the High Court that at least six months’ rent is in arrears

Question 56

Forfeiture: At or after the court order

Answer 56

• The court has a discretion to grant relief ie to allow the lease to continue on condition that the arrears are paid
• Relief is usually given unless the circumstances are exceptional for example:
  (a) Where the property has already been lawfully let to a new tenant after the forfeiture
  (b) Where the non-payment of rent is exceptionally bad. No relief was given in Public Trustee v Westbrook where no rent had been paid for 22 years
• When the landlord has re-entered under a court order, the application for relief must be made within six months of re-entry
• After peaceable re-entry If the landlord forfeits a non-residential lease without a court order (or if less than six months’ rent is in arrears), the court has an inherent equitable jurisdiction to grant relief if:
  (a) the rent and landlord’s costs are paid; and
  (b) it is just and equitable to grant relief - Thatcher v Pearce - A lease of a scrap yard was determined by peaceable re-entry by the landlord while the tenant was in prison. The tenant applied more than six months after forfeiture for relief and was successful.

Question 57

Forfeiture: sub tenant

Answer 57

• If a head-lease is forfeited, any sub-lease will also be destroyed.
• A sub-tenant in the premises has the right to apply for relief from forfeiture.
• This is the case even where the head-tenant cannot get relief himself. The court has the power to vest the head-lease in the sub-tenant on such terms as it sees fit

Question 58

Forfeiture for breach of other covenants - step (4)

Answer 58

Step 4: s 146 Notice

• In cases other than non-payment of rent, before the landlord can forfeit they must first serve notice upon the tenant under LPA 1925, s 146.
• This notice must:
• (a) Specify the breach complained of.
• (b) If capable of remedy, require it to be remedied within a reasonable time.
• (c) Require the lessee to make compensation in money for the breach if the landlord requires such compensation.

Question 59

Forfeiture for breach of other covenants - step (5)

Answer 59

Step 5: Exercise the right

• Once the landlord has correctly served a LPA 1925, s 146 notice, the landlord can proceed to forfeit by court order or peaceable re-entry
• If the breach is not capable of remedy, the landlord must merely give the tenant enough time to consider his position, for example 14 days, before proceeding to forfeit

Question 60

Forfeiture for breach of other covenants - step (6)

Answer 60

The tenant may then apply for relief from forfeiture.

Question 61

s 146 Notice

Answer 61

• The landlord does not have to request compensation if he does not want it
• There is no prescribed form of notice, but the notice must ‘if capable of remedy, require it to be remedied within a reasonable time’
• Breaches which are capable of remedy include continuing breaches, for example failure to repair or unauthorised use.
• ‘Reasonable time’ depends upon the nature of the breach. Some textbooks suggest three months as a rule of thumb.
• If capable of remedy and the tenant does not remedy the breach within a reasonable time, the landlord may proceed to forfeit either by peaceable re-entry or by obtaining a court order (compulsory if residential)
• If the breach is not capable of remedy, the landlord must merely give the tenant enough time to consider his position, for example 14 days, before proceeding to forfeit

Question 62

s 146 capable of remedy? - case law

Answer 62

• Billson v Residential Apartments - Unauthorised alterations may be capable of remedy.
• Scala House and District Property Co Ltd v Forbes - A breach of a covenant not to assign or sublet was held to be incapable of remedy.
• Rugby School (Governors) v Tannahill - Immoral use was held to be incapable of remedy because of the stigma attached to the premises.
• Hoffman v Fineberg - Illegal use (unlawful gaming) was held to be incapable of remedy.
• Van Haarlam v Kasner - Illegal use (spying) was held to be incapable of remedy

Question 63

s 146 Notice - Illegal / immoral use – is it capable of remedy?

Answer 63

Rugby School (Governors) v Tannahill - prostitution. ‘This particular breach…is one which in my judgment was not remedied by merely stopping this user. I cannot conceive how a breach of this kind can be remedied. The result of committing the breach would be known all over the neighbourhood and seriously affect the value of the premises.’

• more recent case law has been more flexible in its approach, and it now seems that it depends on the facts of the case.
• Glass v Kencakes: such breaches are capable of remedy if the lessee did not know of the illegal or immoral use by a subtenant, as long as the lessee takes immediate steps to stop the use, including forfeiting the sublease within a reasonable time.
• In the case of illegal use (in Van Haarlam), the judge said, obiter, that he would have given relief from forfeiture if there had not been waiver, because forfeiture of the lease was out of proportion to the offence.

Question 64

Expert Clothing v Hillgate House

Answer 64

• established the test for assessing whether a breach of covenant is capable or incapable of remedy
• breach of a positive covenant (whether it be a continuing breach or a once and for all breach) will ordinarily be capable of remedy
• the breach of a promise to do something by a certain time can for practical purposes be remedied by the thing being done, even out of time.
• if the section 146 notice had required the lessee to remedy the breach and the lessors had then allowed a reasonable time to elapse to enable the lessee fully to comply with the relevant covenant, would such compliance, coupled with the payment of any appropriate monetary compensation, have effectively remedied the harm?
• If, but only if, the answer to this question was “No,” would the failure of the section 146 notice to require remedy of the breach have been justifiable.

Question 65

Forfeiture for breach of repair covenants​ - additional protection for tenants: Leasehold Property (Repairs) Act 1938 (LP(R)A 1938)

Answer 65

• This Act applies to a covenant to repair in any lease (except an agricultural holding) when the lease is granted for at least seven years and there are at least three years still to run.
• Where the Act applies and the landlord seeks either forfeiture or damages for breach of a repairing covenant, the s 146 notice (in addition to the usual requirements) must inform the tenant of his right under the 1938 Act to serve a counter notice within 28 days.
• If the tenant serves a counter-notice, the landlord cannot proceed to claim forfeiture or damages without first obtaining the leave of the court.

Question 66

Step 4: s 146 Notice - Is it capable of remedy? Conclusion

Answer 66

Most breaches are now technically capable of remedy provided the mischief can be put right by making full recompense to the landlord, leaving the landlord with no lasting damage. However, it is still probably the case that breach of a covenant against assignment or sub-letting, and possibly immoral or illegal use, is technically not capable of remedy.

Question 67

Relief from forfeiture for ‘non-rent’ breaches

Answer 67

LPA 1925, s 146(2) - where the landlord is proceeding by action or otherwise to enforce forfeiture, the tenant may in the landlord’s action, or in any action brought by himself, apply to the court for relief.

• The court may grant or refuse relief as the court, having regard to all the circumstances, thinks fit.
• 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.

Question 68

Relief from forfeiture for ‘non-rent’ breaches - case examples

Answer 68

Hyman v Rose - granted relief despite the tenant failing to comply with the repair and alterations covenants, because the tenant gave a deposit of money to ensure the premises were restored to their original condition.

St Marylebone Property Co v Tesco Stores Ltd - The court refused to grant relief to a head-tenant or sub-tenant in the case of a blatant breach of the user covenant by an unlawful sub-tenant.

Ropemaker Properties Ltd v Noonhaven Ltd- Relief was granted, despite the use of a nightclub for immoral purposes, because the immoral use had ceased, there was no more stigma attaching to the premises, the tenant was excellent in all other respects, the tenant had offered to sell the lease, and the managing director of the tenant was ill.

Question 69

Relief after peaceable re-entry

Answer 69

Billson v Residential Apartments Ltd
- relief can still be given under s 146(2) even after peaceable re-entry though, in the exercise of the court’s discretion, regard will be had to all the circumstances, including the speed with which the tenant applies for relief. The tenant must apply for relief within a reasonable time after peaceable re-entry.

Question 70

Subtenant’s right to relief for non-rent breaches

Answer 70

• LPA 1925, s 146(4) allows a subtenant to apply to the court for relief against forfeiture for breach of other covenants. It is a matter of discretion whether a subtenant will be granted relief. An unlawful subtenant (where no consent was given for the subletting) is unlikely to get relief (St Marylebone Property Co v Tesco Stores Ltd)
• a subtenant must apply for relief within a reasonable time after peaceable re-entry