Termination of Leases

Question 1

Can the right ever be implied into a legal lease?

Answer 1

No

Question 2

Can the right to forfeit ever be implied into an equitable lease? What is the authority?

Answer 2

Yes, a right to forfeit for non-payment of rent is implied in equitable lease (Hodgkinson v Crowe)

Question 3

Which two methods allow a landlord to exercise their right to forfeit?

Answer 3

1. Peaceable re-entry

2. Court order

Question 4

Which Act tells us that a landlord may no longer peaceably re-enter a residential property?

Answer 4

Section 2 Protection from Eviction Act 1977

Question 5

Which case tells us that s2 PFEA 77 also applies to properties that part-residential properties?

Answer 5

Patel v Pirabakaran

Question 6

How may a landlord waive his right to forfeit?

Answer 6

1. If he is aware of the breach enacted by the tenant; AND

2. he reacts unequivocally in recognising the continued existence of the lease.

Question 7

How did the landlord waive his right to forfeit in Central Estates (Belgravia) Ltd v Woolgar?

Answer 7

The landlord’s agent sent out a demand for rent when the landlord was aware of a breach.

Question 8

What is different about the waiver of a continuing breach (eg right to repair) in comparison to a once-and-for-all breach eg sub-letting without consent?

Answer 8

The waiver for a continuing breach may last until the next rent payment is due when the landlord may choose not to continue his waiver. In comparison for a non-continuing covenant if the landlord waives the breach it is permanent.

Question 9

Is payment of rent a continuing or non-continuing breach?

Answer 9

Non-continuing

Question 10

What four steps must a landlord take to exercise his right to forfeit if the tenant has not paid rent?

Answer 10

1. Make a formal demand to the tenant for the amount due on the day it became payable during the hours of sunrise and sunset;
2. Make a demand for any other charges in the lease;
3. Exercise peaceable re-entry or seek a court order;
4. Advise the tenant on how to apply for ‘relief’.

Question 11

When may a landlord not have to make a formal demand between sunrise and sunset?

Answer 11

1. If there is an express clause in the lease relieving the landlord of making a formal demand; OR
2. If rent is 6 months or more in arrears and the tenant has insufficient distrainable goods to satisfy the debt (s210 Common Law Procedure Act 1852)

Question 12

When may a tenant be granted relief from forfeiture by the court?

Answer 12

The particulars change depending on when the tenant applies, but the court will allow relief no matter what stage if the tenant pays the rent in arrears and it is just to grant them relief.

Question 13

In what circumstances may it be inequitable to grant relief? Give two cases that demonstrate this.

Answer 13

In Stanhope v Haworth it was inequitable to grant relief because the property had been leased to another tenant after forfeiture.
In Public Trustee v Westbrook, the tenant hadn’t paid rent for 22 years owing to the fact that the property had been bombed.

Question 14

What procedure must the landlord follow if he is to forfeit the lease for any other breach than non-payment of rent?

Answer 14

He must serve a s146 LPA 1925 notice, which should detail the breach, the remedy (and reasonable time for remedy), and if compensation is required.

Question 15

What does Rugby School (Governors) v Tannahill tell us about s146 notices?

Answer 15

If there is no remedy to the breach and the landlord doesn’t require compensation then the notice may simply state the breach.

Question 16

In which two scenarios may it be impossible to remedy a breach? Which case confirms this is probably still the case?

Answer 16

1. Sub-letting or assigning
2. Immoral or illegal use of property
   Akici v LR per Neuberger LJ

Question 17

Which case established that sub-letting or assigning in breach of the lease cannot be remedied?

Answer 17

Scala House and District Property Co Ltd v Forbes

Question 18

In which three cases was prostitution, unlawful gaming, and spying found to be an immoral use of the property and incapable of remedy?

Answer 18

In turn:

1. Rugby School (Governors) v Tannahill;
2. Hoffman v Fineberg;
3. Van Haarlam v Kasner

Question 19

In London Scottish Properties v Mehmet, how did the court establish when it could be said that a property was being used for an immoral purpose?

Answer 19

When a great majority of the country would condemn the actions as immoral.

Question 20

In Glass v Kencakes when did the court say the use of property for an immoral purpose may be remedied?

Answer 20

If a lessee was unaware of a sub-tenant’s immoral use and the tenant took immediate action to forfeit the sub-lease within a reasonable time and stop the immoral use.

Question 21

Which case tells us where the immoral use has ceased the breach may be said to be remedied?

Answer 21

Ropemaker Properties v Noonhaven

Question 22

Which case shows the court has discretion to offer relief from forfeiture even where the property has been used for an illegal purpose?

Answer 22

Van Haarlem v Kasner

Question 23

What happened in Expert Clothing (Services and Sales) Ltd v Hillgate House Ltd? Did the court say the breach could be remedied?

Answer 23

A lease between the parties required the tenant to carry out building works, which had not even been started by the due date. The court said the breach could still be remedied by carrying out the works and paying compensation.

Question 24

Which case approved Expert Clothing? How did it extend the principle from Expert Clothing?

Answer 24

Savva v Hussein applied the approach to negative covenants.

Question 25

When may a tenant respond to a s146 notice with a counter-notice?

Answer 25

When the breach of covenant is for failure to repair and there is still three years or more left of the lease.

Question 26

What is the effect of a counter-notice?

Answer 26

An effective counter-notice disallows the landlord from exercising their right to forfeit or demanding damages without a court order.

Question 27

Which Act gives tenants the right to counter-notice?

Answer 27

Leasehold Property (Repairs) Act 1938