Q&As

A commercial tenant has breached various covenants in its lease and a section 146 notice has been served. If rent has not been demanded but has been paid by standing order and retained by the landlord, will this have waived the right to forfeit? If the landlord draws down on a rent deposit to pay legal fees, (which the tenant is liable to pay under the terms of the lease) would this waive any right to forfeit?

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Published on LexisPSL on 06/02/2018

The following Property Disputes Q&A provides comprehensive and up to date legal information covering:

  • A commercial tenant has breached various covenants in its lease and a section 146 notice has been served. If rent has not been demanded but has been paid by standing order and retained by the landlord, will this have waived the right to forfeit? If the landlord draws down on a rent deposit to pay legal fees, (which the tenant is liable to pay under the terms of the lease) would this waive any right to forfeit?
  • Acceptance of rent
  • Drawing down a rent deposit

The terms on which the landlord can forfeit will be set out in the lease. Without seeing this document, we are unable to provide a full answer specific to the circumstances of this case. Where a tenant’s breach is for a breach other than non-payment of rent, a landlord can only forfeit a lease after serving a section 146 notice under the Law of Property Act 1925 and providing the tenant a reasonable time to remedy the breach (if remediable). The landlord must also ensure that any other requirements under the lease have been satisfied.

The test of whether a right to forfeit has been waived in an objective test. The question to be asked is whether the landlord acted in a way so as to recognise the continued existence of the lease and the continuing relationship of landlord and tenant. When a lease is forfeited, a landlord is entitled to possession immediately, subject to

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