Q&As

What happens when a residential tenancy is forfeited but a sub-tenancy is in place? Does it fall away, similar to circumstances of commercial leases?

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Produced in partnership with Georgia Whiting of 4 King’s Bench Walk
Published on LexisPSL on 25/11/2015

The following Property Q&A produced in partnership with Georgia Whiting of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • What happens when a residential tenancy is forfeited but a sub-tenancy is in place? Does it fall away, similar to circumstances of commercial leases?

What happens when a residential tenancy is forfeited but a sub-tenancy is in place? Does it fall away, similar to circumstances of commercial leases?

This response considers the forfeiture of a residential tenancy, in circumstances where there is a head landlord, a tenant and a sub-tenant.

Forfeiture is most commonly encountered with fixed term commercial leases. In principle, however, it is also possible to forfeit long residential leases. See our Practice Note: Forfeiture of a lease.

As in a commercial context, where a residential lease is forfeited, any derivative interests come to an end with it. Consequently, sub-lessees, mortgagees, assignees and occupiers all stand to lose their interests in the premises. See our Practice Note: What happens to an underlease on termination of the lease?

It is therefore provided that where the landlord is seeking to enforce forfeiture against the lessee, a sub-tenant may seek relief in one of two ways: either in the landlord’s action against the tenant, or in proceedings specifically initiated by the sub-tenant for relief. In outline, these two forms of relief are:

  1. the grant of a wholly new lease to the claimant on such terms as the court thinks fit (Law of Property Act 1925, s 146(4) (LPA 1925)), or

  2. the vesting of the tenant’s current lease in the claimant (LPA 1925, s 146(2))

The circumstances in which the latter form of relief is

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