Q&As

Is it possible to forfeit an equitable lease (due to failure to register where the term exceeds seven years), assuming the lease contains a forfeiture provision in respect of the relevant breach?

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Produced in partnership with Desmond Kilcoyne
Published on LexisPSL on 19/06/2018

The following Property Disputes Q&A produced in partnership with Desmond Kilcoyne provides comprehensive and up to date legal information covering:

  • Is it possible to forfeit an equitable lease (due to failure to register where the term exceeds seven years), assuming the lease contains a forfeiture provision in respect of the relevant breach?

Is it possible to forfeit an equitable lease (due to failure to register where the term exceeds seven years), assuming the lease contains a forfeiture provision in respect of the relevant breach?

In principle, equity follows the law and rights which a party can have at law are, broadly, capable also of existing in equity. Accordingly, a right to forfeit an equitable lease is recognised in equity. Moreover, given that the jurisdiction to grant relief from a forfeiture was originally generated by the courts of equity, it might be anticipated that the common form of landlord and tenant dispute involving forfeiture and relief simply plays out in equity in the same way as for legal leases.

However, formally, this is not what happens. Instead, the litigation will focus on whether the court should grant specific performance of the lease in the tenant’s favour (ie reflecting the principle that—in equity—the tenant should not be granted an equitable remedy where the tenant is guilty of a relevant wrong). Here, in practice, in most cases the end result is likely to be the same as if one was considering a forfeiture/relief dispute at law; but it is not absolutely clear that the same principles will be applicable.

The relevant history was described in the Court of Appeal in Billson v Residential Apartments Ltd by Sir Nicolas Browne-Wilkinson V.-C where he

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