Q&As

A tenant allowed an undertenant into occupation without consent, the landlord then forfeited the headlease for non-payment of rent, but accepted rent from the undertenant. The landlord has now requested that the undertenant bring the property into repair under the terms of the headlease (rather than the less onerous obligations in the underlease) and vacate as negotiations for a direct lease have broken down. Does the undertenant have to comply?

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Produced in partnership with Lawrence McDonald of Exchange Chambers
Published on LexisPSL on 30/10/2018

The following Property Disputes Q&A produced in partnership with Lawrence McDonald of Exchange Chambers provides comprehensive and up to date legal information covering:

  • A tenant allowed an undertenant into occupation without consent, the landlord then forfeited the headlease for non-payment of rent, but accepted rent from the undertenant. The landlord has now requested that the undertenant bring the property into repair under the terms of the headlease (rather than the less onerous obligations in the underlease) and vacate as negotiations for a direct lease have broken down. Does the undertenant have to comply?

A tenant allowed an undertenant into occupation without consent, the landlord then forfeited the headlease for non-payment of rent, but accepted rent from the undertenant. The landlord has now requested that the undertenant bring the property into repair under the terms of the headlease (rather than the less onerous obligations in the underlease) and vacate as negotiations for a direct lease have broken down. Does the undertenant have to comply?

When the headlease is forfeited, that determines both the headlease itself and any sublease granted out of it, regardless of whether consent to the sublease was granted by the landlord. At that point, the subtenant has no legal right to remain in occupation. See Practice Notes: Forfeiture of a lease under the heading ‘Forfeiture of a lease—Effect of forfeiture’ and What happens to an underlease on termination of the lease?

If the sub-tenant is allowed to remain by the landlord, then there are a number of possible bases on which the sub-tenant could then be said to occupy the premises. First, the sub-tenant could be a tolerated trespasser or a tenant at sufferance. This would result from the landlord simply not taking any action to evict the sub-tenant.

Secondly, there could be inferred a tenancy at will. Where there are active negotiations between the landlord and the former sub-tenant for the grant of a new tenancy, this

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