Remedies For Breach Of Lease

Question 1

LL remedies for tenant’s breach of lease

Answer 1

Damages - to put LL in position had breach not occured

Action in debt - limited to 6 years before issung proceedings

Sue guarantor

Withdraw funds from rent deposit

Specific performance

Injunction

Commercial rent arrears recovery

Question 2

When can commercial rent arrears recovery by used

Answer 2

Where premises are purely commercial
Minimum 7 days principal rent owed (inc vat and interest, but NOT service or insurance)
Lease has not been forfeited

Question 3

Requirements for commercial rent arrears recovery

Answer 3

1. LL appoint enforcement agent
2. 7 days clear notice of intention yo enter premises given to T - must set out amount owed and how to replay, power used and contact details of EO
3. If notice expires without repayment - EO can enter and take control of goods up to amount owed
4. LL must serve further 7 days clear notice if intend to sell goods

Question 4

What is forfeiture

Answer 4

Landlord right to reenter premises and reclaim possession

Brings lease to an end before end of contractual term

Question 5

Is right to forfeiture automatic

Answer 5

No - must be specified in lease

Question 6

When can right to forfeiture be exercised

Answer 6

Tenant fails to pay rent - LL can re enter as soon as lease allows (peaceable re entry or issue court proceedings)

Tenant breaches obligations under lease - LL must serve s146 notice

Insolvency event - LL must serve s146 noticr

Question 7

Waiver of right to forfeiture

Answer 7

If LL acts in a way that acknowledges continuing existence of breach then right to forfeit is waived

Question 8

Can right to forfeit be waived impliedly

Answer 8

Yes - if LL does unequivocal act recognising continued existence with knowledge of breach and communicates to tenant

Intention of LL is irrelevant

Question 9

What is a ‘once and for all’ breach

Answer 9

Once LL waives right, never regains right to forfeit

Eg non payment of rent, unlawful alienation, insolvency event

Question 10

What is a continuing breach

Answer 10

Each day breach continues, LL regains right to forfeit

Failure to keep in good repair
Breach of user covenant
Failure to comply with insurance obligation

Question 11

how can tenant obtain relief from forfeiture

Answer 11

Tenant can apply to court once LL serves s146 notice or starts proceedings

This is a discretionary remedy

Question 12

Can other parties who derive interest under lease (eg mortgagee or undertenant) seek relief from forfeiture

Answer 12

yes

Question 13

Remedies for breach of repair covenant

Answer 13

Forfeiture (must serve s146 notice) and advise T on right to serve counter notice

Damages - proceedings cannot be issued until s146 notice served and 28 days to serve counter
- measure of damages is loss of value to LL reversion

Specific performance

Self help clause

Question 14

Counter notice to s146 notice for breach of repair covenant

Answer 14

Tenant can serve within 28 days if lease is for 7 years or more with 3 years left to run

Once counter notice is served, LL need leave of court to proceed

Question 15

Measure of damages for breach of repair covenant

Answer 15

Loss of value to LL reversion - not cost of putting premises in full repair

Question 16

Self help clause

Answer 16

Must be contained in lease. Gives LL right to enter property, carry out repairs and recover costs from tenant

LL does not need to serve s146 notice

Cost of repairs treated as a debt - can recover full amount