Forfeiting a residential lease

Last updated: July 2023 | 4 min read

What does it mean to forfeit a lease?

Forfeiture of a lease describes the process where a landlord, due to certain breaches by a tenant, ends the lease before its natural expiration. Rooted in common law, lease forfeiture is an inherent right of the landlord. It offers a means to regain possession of their property when tenants fail to comply with specific lease obligations.

Landlord and Tenant Act 1987 provides statutory protection for tenants against unfair forfeiture. Forfeiture may only be initiated for specified breaches, often detailed in the forfeiture clause within the lease, and generally requires court proceedings for residential properties.

Why might a landlord choose lease forfeiture?

Lease forfeiture may serve as a practical tool for landlords to enforce lease obligations. Despite appearing a severe action, it can sometimes be the most efficient and effective solution when dealing with persistent or serious breaches of lease terms.

Primary reasons that might prompt landlords towards lease forfeiture include persistent non-payment of rent or other charges, significant damage to the property, or misuse of the property in violation of the lease's terms.

In a context where the tenant's breach persists despite attempts at resolution, lease forfeiture allows the landlord to reclaim control of their property, mitigating further financial losses. However, as it's a drastic measure with potential legal complications, landlords often employ forfeiture as a last resort, only after exploring less drastic remedies.

How does a tenant's breach lead to forfeiture of lease?

Non-payment of rent

Non-payment of rent is among the most common triggers for lease forfeiture. If a tenant fails to pay rent for a certain period, typically specified in the lease, the landlord can initiate forfeiture proceedings. This period is often 21 days, but it's crucial to check the lease specifics.

Landlords need to exercise caution. The Law of Property Act 1925 stipulates that landlords must serve a formal demand for all the rent due before starting forfeiture proceedings for rent arrears, unless the lease expressly says that such demand isn't required.

Other serious breaches: beyond rent arrears

While non-payment of rent is a frequent reason for forfeiture, other serious breaches can also lead to such action. These might include violating restrictions on the property's use, causing significant damage to the property, or breaching other lease obligations (such as building an extension without permission).

The route to forfeiture for these other breaches typically involves serving a Section 146 notice under the Law of Property Act 1925. This notice details the breach and demands rectification within a reasonable time, and if the tenant fails to rectify, forfeiture proceedings can begin.

Landlords should note that there are strict procedures and requirements for the service of a Section 146 notice, and failure to comply with these can invalidate the forfeiture. However, not all breaches will lead to forfeiture. Some minor breaches may not justify forfeiture in the eyes of the court, and it's important for landlords to seek professional advice to understand their options.

Residential lease forfeiture terms

How does the forfeiture clause operate in a lease?

A forfeiture clause, embedded within a lease agreement, empowers landlords to reclaim their property when tenants fail to adhere to the terms set out in the lease. This ability to forfeit comes from the common law right to re-enter, and is generally conferred expressly by the lease in the form of a forfeiture clause.

In some leases, especially those relating to commercial property, forfeiture can be triggered for various breaches, like non payment of rent or failing to maintain the property in good condition. For residential leases, however, the use of forfeiture can be more limited due to specific tenant protection legislation.

Commercial property versus residential property: a comparative analysis

In contrast to commercial leases, residential leases are subject to several restrictions which curb the landlord's right to forfeit. For example, the Renting Homes (Wales) Act 2016 and the English Housing Act, grant tenants additional protection from eviction.

These differences can significantly affect how a forfeiture clause operates. In commercial leases, forfeiture for non payment of rent can be enacted relatively swiftly if rent is unpaid for a specific period, usually 21 days. However, for residential leases, court proceedings for possession are usually necessary, even if the lease includes a forfeiture clause.

Understanding these variances is key in managing your properties effectively, regardless of whether they are commercial or residential in nature.

What are the processes involved in forfeiture of a residential lease?

When a landlord decides to pursue lease forfeiture, two main methods are available: peaceable re-entry and forfeiture by court proceedings. Both processes have their intricacies and nuances, so understanding them can save you considerable time and resources.

Peaceable re-entry: a possible approach

Peaceable re-entry involves the landlord physically reclaiming possession of the property without a court order. This could be as simple as changing the locks when the property is unoccupied. Despite its name, peaceable re-entry does not mean the landlord can use force to regain possession. Instead, it must be done without breaching the peace or committing a criminal offence under the Criminal Law Act 1977.

It's essential to grasp the distinction between peaceful re-entry and peaceable possession. Peaceful re-entry refers to the act of physically taking back control of the property. In contrast, peaceable possession means that the landlord exercises uninterrupted control over the property, free from any legal challenge by the tenant.

Peaceful re-entry isn't always an option. For instance, the Protection from Eviction Act 1977 prohibits peaceable re-entry if the property has a residential element and is lawfully occupied. This is where understanding your lease agreement and the law becomes vital, to ensure you don't accidentally commit a criminal offence.

Forfeiture by court proceedings: a more formal route

When peaceable re-entry is not an option, landlords can opt for forfeiture by court proceedings. This process involves applying to the court for a possession order. If successful, this order permits the landlord or a landlord's bailiff to reclaim the property.

Usually, possession proceedings are brought in the county court, but they can be transferred to the high court in some situations. While the high court can be faster, it's also more expensive. In some cases, costs might be recoverable from the tenant. However, it's always wise to consult with a legal professional before deciding.

While Commercial Rent Arrears Recovery (CRAR) has a place in commercial lease forfeiture, it's not applicable for residential lease forfeiture. CRAR allows commercial landlords to recover rent arrears by taking control of the tenant's goods, but residential tenants are protected from such actions.

What should a landlord do after lease forfeiture?

Following a successful lease forfeiture, there are further actions for a landlord to consider. These may include dealing with any goods left by the tenant and ensuring the property is fit for reletting.

Dealing with goods left inside the property

When tenants vacate the property, they might leave some of their belongings behind. These goods can't simply be disposed of immediately. Instead, landlords are typically required to serve a notice, giving the tenant a reasonable time to collect their items.

Obtaining vacant possession and reletting the property

After forfeiture, a landlord will want to relet the property as soon as possible. But before doing so, the property should be thoroughly inspected and any necessary repairs carried out. Only then can the property be considered for reletting, signalling the start of a new chapter for both landlord and property.

Can forfeiture of a lease be unlawful?

Landlords' right to forfeit a lease due to a tenant's breach is subject to certain statutory and common law protections in favour of the tenant. This is the context in which the idea of an 'unlawful' forfeiture arises.

Illegal forfeiture of a residential lease, in essence, is when a landlord seeks to repossess their property without adhering to the legally prescribed procedures. If a landlord breaches the peace while effecting forfeiture by peaceable re entry, it may amount to a criminal offence under the Criminal Law Act.

Wrongful eviction occurs when a landlord ejects a tenant without a court order for possession. The Protection from Eviction Act gives tenants certain rights and protections against unlawful eviction.

Unlawful forfeiture can have grave implications for a landlord. Consequences range from criminal charges to financial penalties imposed by a court. In serious instances, landlords found guilty of unlawful eviction could face imprisonment. Moreover, a tenant may have the right to be reinstated into the property if the lease forfeiture was unlawful.

What are the tenant's remedies against lease forfeiture?

If a lease is forfeited, it's not always the end of the road for the tenant. There exist a few legal remedies that a tenant can pursue to regain possession of the leasehold property or mitigate their losses.

Relief from forfeiture: an equitable remedy

Relief from forfeiture is a powerful tool available to tenants. Under the common law and the Leasehold Property (Repairs) Act, a tenant can apply to the court for this relief.

Relief from forfeiture is an equitable jurisdiction of the court, which can provide a lifeline to tenants who have had their lease forfeited. It is usually granted when the tenant remedies the breach within a reasonable time and pays all the rent and any costs incurred by the landlord.

Tenants can apply to the county court or the high court for relief from forfeiture, depending on the circumstances. Tenants must make the application promptly as any delay may affect their chance of obtaining relief.

In cases of non payment of rent, tenants can obtain automatic relief from forfeiture if they pay all the rent due, plus any interest and reasonable expenses incurred by the landlord, within a specific timeframe.

Insolvency arrangement: an option for tenants

If a tenant is experiencing financial difficulty, an insolvency arrangement could be a potential remedy. This is a formal agreement between a tenant and their creditors, including the landlord, to repay some or all of their debts over a period of time.

What role does the first tier tribunal play in lease forfeiture?

The first tier tribunal, more specifically the Property Chamber, is another important actor in the landscape of residential lease forfeiture. It offers an alternative route to court proceedings for certain issues related to lease forfeiture.

The tribunal can determine matters such as the reasonableness of service charges, the terms of a lease and whether a landlord can lawfully exercise a right to forfeit. While its orders are binding, it doesn't have jurisdiction to grant relief from forfeiture. That power resides with the courts.

How to recover costs after lease forfeiture?

Recovering landlord's costs: legal and other expenses

Financial impact of lease forfeiture isn't limited to rent arrears or lost income. When it comes to the forfeiture of a lease, landlords often have to bear substantial costs. These costs can include legal proceedings, court orders, and even the enforcement of eviction.

A forfeiture procedure allows the landlord to recover some of these costs. However, this depends on several factors. The property act specifies that landlords may add the costs to the service charges, given these expenses relate directly to the leasehold property. Nonetheless, the question of who will bear these costs often depends on the lease's specific terms.

How to avoid incurring unnecessary costs?

An ounce of prevention is worth a pound of cure. Lease forfeiture is a costly affair. But, landlords can avoid unnecessary costs. One significant way to do so is through open communication.

Regular communication with tenants can help prevent breaches before they escalate to a level where lease forfeiture becomes necessary. Early identification of rent arrears or other potential breaches can allow for negotiation and resolution without resorting to forfeiture proceedings. Moreover, landlords should ensure that any forfeiture action follows the proper legal process. An improperly handled forfeiture could potentially lead to unlawful eviction claims from the tenant, resulting in additional costs.

What is the impact of lease forfeiture on landlords and tenants?

Lease forfeiture creates ripples that extend beyond the immediate parties. It's a seismic shift in the landlord-tenant relationship, impacting both parties significantly.

For landlords, lease forfeiture often means recovery of their property, particularly when rent arrears or serious breaches have made the relationship untenable. However, landlords face the loss of rental income until a new tenant can be found. Additionally, there are the aforementioned legal costs, potential property refurbishment, and the time and resources spent on reletting the property.

For tenants, lease forfeiture can result in the loss of their home or commercial space, often accompanied by legal consequences. In cases of residential leases, tenants might face the challenge of finding new accommodation, usually at short notice. Additionally, forfeiture may affect their credit rating, making it more difficult to secure leases in the future.

Every forfeiture of lease situation is unique. Therefore, it's sensible for landlords to seek legal advice before starting forfeiture proceedings. Many solicitors offer a free initial discussion. This session can help clarify the situation, outline possible steps, and provide an idea of the likely costs involved.

The advice of a legal professional can save landlords from pitfalls and potential claims for unlawful eviction. Furthermore, a solicitor can help with interpreting the terms of the lease, which is essential to ensure that forfeiture is the right step.

Just as a stitch in time saves nine, seeking timely legal advice can prevent complications later in forfeiture proceedings. Delays or incorrect handling can inadvertently waive the right to forfeit the lease. Additionally, the law, particularly regarding residential leases, protects tenants to some extent. Therefore, it's crucial to know exactly what the law permits and requires.

Getting early legal advice ensures that landlords follow the correct procedures, including serving the appropriate warning notice, thus helping avoid protracted and costly legal disputes. Moreover, legal advice can help landlords understand alternative solutions, such as granting relief or accepting a payment plan for rent arrears.

Conclusion: forfeiture as a last resort?

The law allows lease forfeiture as a remedy for landlords, but should it be the first option on the table? The forfeiture of lease is a weighty decision with significant impacts on both landlords and tenants. It isn't a decision to take lightly.

While it provides landlords a way to recover possession when a tenant defaults, forfeiture should typically be seen as a last resort. Before considering forfeiture, landlords are advised to explore all other avenues for resolution. These might include open communication, mediation, or accepting a payment plan to address rent arrears. Ultimately, it is a matter of balance, and forfeiture needs to be approached with both the head and the heart.

Remember, it's always wise to seek professional advice before making a final determination on forfeiture. Whether you are a landlord contemplating forfeiture or a tenant facing it, be informed, be prepared, and be proactive.

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