Claiming relief from forfeiture when breach is rent arrears
Claiming relief from forfeiture when breach is rent arrears

The following Property Disputes guidance note provides comprehensive and up to date legal information covering:

  • Claiming relief from forfeiture when breach is rent arrears
  • Jurisdiction to grant relief in respect of breaches of covenant for non-payment of rent
  • Relief against forfeiture for non-payment of rent in the county court
  • Relief against forfeiture for non-payment of rent in the High Court
  • Factors to be taken into account by the court
  • Applications for relief by sub-tenants and mortgagees
  • Is a court order necessary to agree relief from forfeiture?

The process for claiming relief from forfeiture when the breach is rent arrears varies depending on the nature of the breach. For information in respect of claiming relief for any breach other than rent arrears, see Practice Note: Claiming relief from forfeiture for any breach other than rent arrears.

If a landlord intends to forfeit due to rent arrears, he does not need to serve a notice under section 146 of the Law of Property Act 1925 (LPA 1925) prior to forfeiture.

In these circumstances, a relief from forfeiture application is usually made by:

  1. counterclaiming in the landlord’s action for forfeiture

  2. separate claim brought by the tenant

If, instead, the tenant applies to set aside the order for possession pursuant to CPR 39.3, obtaining relief from forfeiture constitutes ‘success’ for the purpose of CPR 39.3(5)(c) even where there is no defence to the possession claim itself.

Relief is not limited to termination of leases, and is equally available for the ending of rights granted by licence provided they are sufficiently ‘possessory’ in nature. The requirements for relief to be available are:

  1. the agreement grants either proprietary or possessory rights over land

  2. the forfeiture provision must exist as security for the attainment of a particular object (usually the performance of covenants)

Whether rights are ‘possessory’ is likely to turn on whether there is a ‘sufficient degree of

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