metadata toggle
CHAPTER H
 
Termination of tenancies at common law
Introduction
 
Before a landlord can succeed in obtaining a possession order against an unprotected tenant or any kind of Rent Act protected tenant, the original contractual tenancy must be terminated.
Notices to quit by landlords
 
A notice to quit must comply with the statutory requirements of the Protection from Eviction Act 1977 s5, common-law requirements and any contractual requirements.
Supreme Court (formerly House of Lords)
 
Barrett v Morgan
[2000] 2 AC 264; [2000] 2 WLR 284; [2000] 1 All ER 481; [2000] 1 EGLR 8; (2000) Times 28 January
 
Arrangement concerning notice to quit not tantamount to consensual surrender of tenancy
Freeholders of agricultural land agreed with their tenants that they would serve a notice to quit and that the tenants would not serve a counter notice under Agricultural Holdings Act 1986. The purpose of this agreement was to enable the freeholders to obtain possession against a subtenant. The Court of Appeal held that this arrangement was tantamount to a consensual surrender of the tenancy and so did not determine the subtenancy.
The House of Lords allowed a further appeal. Service of a notice to quit by either a tenant or a landlord by pre-arrangement with the other was not tantamount to a surrender of the tenancy as, unlike a surrender, it did not need the consent of the receiving party to have effect. In this case, the tenants’ consent was unnecessary and the freeholders were only doing with their consent what they were entitled to do without it.
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd
[1997] AC 749; [1997] 2 WLR 945; [1997] 3 All ER 352; [1997] 1 EGLR 57; [1997] 25 EG 138, HL
 
Where date one day out, valid; reasonable recipient test applied
A ten-year fixed-term tenancy allowed the tenant to terminate by giving six months’ notice expiring on 13 January 1995. The tenant gave notice expiring on 12 January 1995.
The House of Lords held that the notice was effective in determining the tenancy. Looked at objectively, a reasonable recipient with knowledge of the terms of the lease would have been in no doubt that the tenant wished to determine the lease on 13 January, but had wrongly described it as 12 January. The House of Lords approved the test applied in Carradine Properties Ltd v Aslam (Carradine Properties Ltd v Aslam).
Court of Appeal
 
Addis v Burrows
[1948] 1 KB 444; [1948] 1 All ER 177, CA
 
NTQ valid despite not giving date, as date could be ascertained by tenant
A landlord served a notice ‘to quit and deliver up at the expiration of your tenancy which will expire next after the end of one half year from the service of this notice …’ The Court of Appeal held that the notice was valid. Landlords have a duty:
… to give notices in terms which are sufficiently clear and unambiguous in that the right date is either stated or can be ascertained by the tenant by reference to his tenancy agreement with the terms of which he must be taken to be familiar. ([1948] 1 All ER 177 at 182)
Beckerman v Durling
(1981) 6 HLR 87, CA
 
Notice valid despite old prescribed form being used
A landlord served a notice to quit in the form prescribed by the Notices to Quit (Prescribed Information) Regulations 1975 SI No 2196 after the Notices to Quit (Prescribed Information) Regulations 1980 SI No 1624 had come into force.
The Court of Appeal held that since, on the tenant’s admission, in substance all the information required by the 1980 regulations was contained in the notice, it was valid. It was not necessary that the precise form of wording of the 1980 Regulations should be set out. See also Swansea CC v Hearn (Swansea CC v Hearn).
Blunden v Frogmore Investments Ltd
[2002] EWCA Civ 573; [2002] 2 All ER 668; [2002] L&TR 31; [2002] 29 EG 153
 
Service by post good despite not coming to recipient’s attention
The only issue on the appeal was the validity of service of a notice by Frogmore terminating Mr Blunden’s lease of a shop. The notice was served in the aftermath of the IRA bombing of the Arndale Centre in Manchester. As a result of the explosion, Mr Blunden’s shop had been rendered substantially unfit for occupation. His lease provided that:
• If any destruction or damage shall render the Demised Premises … wholly or substantially unfit for occupation the Landlord may by giving to the Tenant … notice in writing determine this Demise …
• In addition to any other prescribed mode of service any notices requiring to be served hereunder shall be validly served if served in accordance with Section 197 of the Law of Property Act 1925 as amended by the Recorded Delivery Service Act 1962 or in the case of the Tenant if left addressed to it or if there shall be more than one to any of them on the Demised Premises or sent to it him or any of them by post or left at the last known address or addresses of it him or any of them in Great Britain.
(It was common ground that the reference to section 197 was an obvious error and that section 196 was intended.) Frogmore posted by recorded delivery three letters containing notices addressed to Mr Blunden, one to the demised premises and the other two to private addresses, one of which was the latest given by him. However, all three letters were returned by the Post Office. Mr Blunden’s evidence was that he was unable to visit two of the addresses because of the police security cordon. He did not visit the third address until after the time for collection of the recorded delivery letter had expired. The court accordingly considered the case on the basis that he had no knowledge of the notices.
The Court of Appeal, after reviewing a number of authorities, held that there had been good postal service of the notices, even though they did not come to Mr Blunden’s attention. Robert Walker LJ said that ‘Notice is not the same as knowledge. … It is possible for valid notice to be given even though the intended recipient does not know of the notice (and is not at fault in not knowing about it).’ However, it was recognised that there may be exceptions to this rule where a notice was not left at a tenant’s house ‘in a proper way … but in a way which was deceptive and illusory’ or where the sender of the notice had intentionally taken steps which ensured that it did not come to the attention of the addressee.
Note: Although this case involves consideration of service of notices under Landlord and Tenant Act 1954 Part 2, the same rules may apply in certain circumstances to service of notices to quit.
Cowan v Chief Constable for Avon and Somerset Constabulary
[2001] EWCA Civ 1699; [2002] HLR 43; (2001) Times 11 December
Cowan v Chief Constable for Avon and Somerset Constabulary
Police did not owe duty of care to tenant to prevent unlawful eviction. Guidance on length of notice needed to terminate licence
Crate v Miller
[1947] KB 946; [1947] 2 All ER 45, CA
 
NTQ may expire on last day or first day of period of tenancy
A notice to quit a weekly tenancy may expire either on the same day as the date on which the tenancy commenced or on the day before.
Enfield LBC v Devonish and Sutton
(1997) 29 HLR 691; (1997) 75 P&CR 288, CA
 
Service of notice required to satisfy common law or Law of Property Act 1925 s196(5)
Mr Devonish, a council tenant, moved out, leaving his former cohabitee Ms Sutton in possession. The tenancy ceased to be secure because the tenant was not in occupation (Housing Act 1985 s81). The council sought to end the tenancy and ‘served’ a notice to quit by putting it through the letterbox of the property, although the council knew that the tenant was not there. A county court judge granted possession. Ms Sutton appealed, contending that the tenancy had not ended because the council could not prove that the notice had come to Mr Devonish’s attention.
The Court of Appeal allowed the appeal and discharged the possession order. At common law, service of a notice to quit can be effected either by actual delivery to the tenant (or spouse or servant) or by evidence that the notice has come to the tenant’s attention. The landlords could establish neither and were therefore forced to rely on statute. By Law of Property Act 1925 s196(5), a notice can be served by being left at the premises if that method is required by the lease or tenancy agreement itself. Mr Devonish’s tenancy contained no express provision to that effect (cf Wandsworth LBC v Attwell (Wandsworth LBC v Attwell)) and the Court of Appeal declined to imply one).
Fareham BC v Miller
[2013] EWCA Civ 159; [2013] HLR 22; [2013] 1 EG 81(15); [2013] 1 P&CR DG25, 6 March 2013
Fareham BC v Miller
 
A landlord could not revoke a notice to quit, or create a new a tenancy, by promising a former tenant that he would not be evicted if he behaved himself in the future
Fitzhugh v Fitzhugh
[2012] EWCA Civ 694; [2012] 2 P&CR 14; [2012] 3 EGLR 57; [2012] 35 EG 72, 1 June 2012
 
A notice to determine a licence during the term had to be provided by both joint licensors
The claimant and the defendant jointly granted a licence over land to a third party and the defendant jointly. The licence fee was not paid and the claimant (acting alone) gave written notice to terminate the licence. The claimant then sought an order for possession.
The Court of Appeal asked and answered this question: If A and B (described as ‘the licensor’) grant a licence to occupy land to B and C (described as ‘the licensee’), and the licence automatically terminates upon the failure of B and C to remedy any remediable breaches within the time specified by a notice given by ‘the licensor’ to ‘the licensee’, can such a notice validly be given by A alone? It held that only A and B acting together could give notice to B and C. As the notice had been given by the claimant alone, it was invalid and the licence had not ended.
Garston v Scottish Widows
[1998] 1 WLR 1583; [1998] 3 All ER 596; [1998] L&TR 230; [1998] 32 EG 88; (1998) Times 14 July, CA
 
Notice valid applying reasonable recipient test
By a lease dated 10 July 1985, office premises were demised for a term of 20 years from 24 June 1985. The lease contained a break clause enabling the tenant to determine the term ‘at the expiration of the tenth year of the term’ by giving to the landlord ‘at least six months’ previous notice in writing’. On 14 September 1994, the tenant gave notice of its desire to determine the term on 9 July 1995. It was accepted by both parties that the tenant had made a mistake in specifying the date of termination as the expiration of the tenth anniversary of the date of the lease (10 July 1985) instead of the tenth year of the term (24 June 1985). The landlord did not accept that the lease had been validly determined.
Following Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd), the Court of Appeal held that a reasonable recipient of the notice would have known that 24 June 1995 was the only date on which the lease could be determined and that the landlords intended to break the lease on the correct date but had wrongly specified 9 July 1995. The lease had been validly determined.
Hammersmith and Fulham LBC v Alexander-David
[2009] EWCA Civ 259; [2010] 2 WLR 1126; [2009] 3 All ER 1098; [2009] HLR 39; [2009] 2 P&CR 18; (2009) Times 13 April, 1 April 2009
Hammersmith and Fulham LBC v Alexander-David
 
Where a landlord held the property on trust for a minor the service of a notice to quit amounted to a breach of trust and was therefore invalid
Harler v Calder
(1989) 21 HLR 214; [1989] 1 EGLR 88; [1989] 25 EG 95, CA
 
Contractual requirement did not oust common-law rule
A clause in a monthly tenancy agreement provided that, if either party wished to terminate the tenancy, not less than one month’s written notice should be given in accordance with the statutory requirements, but that ‘no other formality will be required’. It was held that the clause did not have the effect of ousting the common law rule that, to be valid, a notice to quit must expire on the rent day or the day before the rent day.
Manorlike Ltd v Le Vitas Travel Agency
[1986] 1 All ER 573; [1986] 1 EGLR 79; (1986) 278 EG 412, CA
 
Notice valid despite notice ‘within 3 months’ rather than ‘not less than 3 months’
A lease provided that it could be terminated by the landlord giving ‘not less than three months’ previous notice’. The landlord’s solicitors wrote giving notice to quit ‘within a period of three months from the date of service of this notice’. The notice was valid.
National Trust for Places of Historic Interest v Knipe
[1997] 4 All ER 627; (1998) 30 HLR 449; [1997] 2 EGLR 9, CA
 
Agricultural holding not a dwelling and Protection from Eviction Act 1977 s5 did not apply
The Court of Appeal held that premises let as an agricultural holding, even if there was a dwelling on the holding, did not constitute premises let as a dwelling for the purposes of Protection from Eviction Act 1977. A notice to quit such premises was not invalid for failure to include the prescribed information required by the Notices to Quit (Prescribed Information) Regulations 1988. The prescribed information is inappropriate in the case of an agricultural tenancy.
Schnabel v Allard
[1967] 1 QB 627; [1966] 3 WLR 1295; [1966] 3 All ER 816, CA
 
NTQ does not require 28 clear days; Friday to Friday four weeks later satisfactory
A flat was rented on a weekly tenancy. The tenant received a notice to quit on Friday 4 March 1966, purporting to terminate the tenancy on Friday 1 April.
The Court of Appeal held that the notice was valid at common law and complied with Rent Act 1957 s16 (now Protection from Eviction Act 1977 s5). The statutory four-week period should be reckoned as a period which included the first day of the notice but excluded the last day. The requirement for a minimum of four weeks’ notice does not mean ‘28 clear days’.
Swansea CC v Hearn
(1991) 23 HLR 284, CA
 
NTQ in old prescribed form valid
The defendant was a homeless person in priority need whom the council had found to be intentionally homeless. He was provided with temporary accommodation in accordance with Housing Act 1985 s63(3) (now Housing Act 1996 s190(2)). The council served a notice to quit. It was in the form prescribed by the Notices to Quit (Prescribed Information) Regulations 1980 SI No 1624, not that prescribed by the Notices to Quit (Prescribed Information) Regulations 1988 SI No 2201, which were in force at the time of service. The tenant claimed that the notice was invalid.
In the county court, the council’s claim for possession was dismissed but its appeal to the Court of Appeal was allowed. The information given in the old form of notice to quit was sufficient to comply with the current regulations.
Wandsworth LBC v Attwell
[1995] 3 WLR 95; (1995) 27 HLR 536; [1996] 1 EGLR 57; (1996) 94 LGR 419, CA
 
Law of Property Act 1925 s196 does not apply to service of NTQs; express provision required in tenancy for service at property
A secure council tenant went abroad to work and left his half-brother to take care of his home and pay the rent. The council claimed to have ended the tenancy by leaving a notice to quit at the property and by sending another notice to quit to the address overseas given by the half-brother. In possession proceedings, the judge found that the tenant had ceased to occupy the premises as his only or principal residence and that the tenancy had ceased to be secure. However, the tenant and his half-brother claimed that the contractual tenancy had not been terminated because the tenant had not received the notice to quit. The council claimed that a notice to quit was a document ‘required to be served’ within the meaning of Law of Property Act 1925 s196 and so it was ‘sufficiently served if … left at the last known place of abode … of the lessee’ (s196(3)). In the county court, possession was granted on the basis that the council had taken ‘all the steps which were available’ to give notice to the tenant.
The Court of Appeal allowed the tenant’s appeal and held that a landlord can rely on service by delivery to the premises only if there is an express provision for that method of service in the tenancy agreement. A notice to quit is not a document required to be served by any instrument or by Law of Property Act 1925 and so section 196 does not apply. In the absence of any express provision in a tenancy agreement, a landlord must prove that a notice to quit has come to the attention of the tenant.
Compare Enfield LBC v Devonish and Sutton (Enfield LBC v Devonish and Sutton)
Wirral MBC v Smith
(1982) 4 HLR 81; (1982) 43 P&CR 312; (1982) 80 LGR 628; (1982) 262 EG 1298, CA
 
NTQ must be served to end deceased’s tenancy
Mrs Horne, a council tenant, died intestate in hospital. Shortly after she had gone into hospital, but two months before her death, Mr Smith moved into the house to look after it. Four months later, without determining the tenancy, the council began possession proceedings in the county court under the summary procedure.
The Court of Appeal allowed Mr Smith’s appeal against a possession order. On the tenant’s death, the tenancy had vested in the possession of the President of the Family Division. No notice to quit had been served on the President and so the tenancy had not been terminated. Ormrod LJ confirmed that: ‘An action for trespass can only be maintained by someone who has a right to immediate possession.’
Note: From 1 July 1995, any such tenancy vests in the Public Trustee rather than the President: Law of Property (Miscellaneous Provisions) Act 1994 s14. Any notice to quit relating to property rented by a deceased person has to be addressed to the personal representatives of the deceased and left or posted to the last known place of residence. In addition a copy must be served on the Public Trustee at PO Box 3010, London WC2A 1AX with form NL1, application form to register a notice. The Public Trustee (Notices Affecting Land) (Title on Death) Regulations 1995 SI No 1330 deal with the Public Trustee’s functions and prescribe fees. For guidance see www.gov.uk/tenancy-agreements-a-guide-for-landlords/if-your-tenant-dies-without-an-executor-or-will.
High Court
 
Carradine Properties Ltd v Aslam
[1976] 1 WLR 442; [1976] 1 All ER 573; (1975) 32 P&CR 12, ChD
 
Test is: ‘Is the notice quite clear to a reasonable tenant reading it?’; notice valid where obvious mistake
A lease for a term of 21 years included a provision entitling the landlord to terminate it on giving 12 months’ notice. On 6 September 1974, the landlords served a notice stating that they intended to terminate the lease on 27 September 1973. Their intention had been to determine it on 27 September 1975, but the reference to 1973 was a clerical error.
Goulding J held that the notice was valid. He stated that the test generally applicable when interpreting a notice to quit is: ‘Is the notice quite clear to a reasonable tenant reading it? Is it plain that he cannot be misled by it?’ The tenant reading the notice must have seen the mistake and realised that it was ‘obvious’ that the landlord meant 1975.
Note: This decision was approved by the House of Lords in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd).
Leckhampton Dairies Ltd v Artus Whitfield Ltd
(1986) 130 SJ 27; (1986) 83 LSG 875, QBD
 
NTQ served by one joint landlord valid
A notice to quit served by one joint landlord without the knowledge or agreement of the other is valid.
Note: Although this case concerned a notice served to terminate a business tenancy, the same principle applies to residential tenancies. See also Annen v Rattee (1985) 17 HLR 323, CA.
Precious v Reedie
[1924] 2 KB 149, KBD
 
Period of notice in monthly tenancy is month; notice must end at end of period
A house was let on a monthly tenancy which began on the first day of the month. On 5 September 1923, the tenant received a notice to quit dated 1 September 1923, giving ‘one month’s notice to quit’. In possession proceedings, a county court judge held that the notice was a good notice for 31 October 1923, which was the earliest possible date on which the tenancy could be terminated.
The tenant’s appeal was allowed. In a monthly as in a weekly tenancy, the period of the notice to quit must correspond with the length of the tenancy and must determine at the end of a periodic month from the commencement of the tenancy. A notice to quit should be strictly construed by the court. If it is invalid, it cannot be amended. However, if the notice to quit had included additional words such as ‘or so soon thereafter as the tenancy would expire’ it would have been valid.
County Court
 
Croydon LBC v Tando
Croydon County Court, June 2012 Legal Action 35, 27 March 2012
 
A landlord did not cease to hold a tenancy on trust for a minor when she turned 18; the landlord had to bring the trust to an end before it could end the tenancyTimes 13 April, 1 April 2009
Ms Tando was 17. She applied to Croydon as a homeless person. On 11 April 2011, the council purported to grant her a non-secure tenancy in discharge of its duty under Housing Act 1996 Part 7. It used a standard form tenancy agreement which did not make any reference to any person taking as trustee. On 20 May 2011, the council served a notice to quit. The subsequent possession claim also referred to rent arrears.
HHJ Ellis dismissed the claim. As a result of Law of Property Act 1925 s1(6), Ms Tando was not entitled to hold the legal estate. The purported grant of the tenancy to her while she was a minor created a ‘trust of land’ under the Trusts of Land and Appointment of Trustees Act (ToLATA) 1996. When she became 18, in the absence of a disclaimer, that trust continued to subsist as a bare trust. It could have been ended by Ms Tando calling for transfer of the legal title or by Croydon making an application to transfer legal title to her. In the absence of those positive actions, the bare trust continued under the ToLATA. Croydon, as both landlord and trustee, was in breach of trust in serving a notice to quit (Hammersmith and Fulham LBC v Alexander-David (Hammersmith and Fulham LBC v Alexander-David)). The notice to quit was, therefore, not sufficient to determine the tenancy.
Notices to quit served by tenants
 
It is now settled law that, if there is a joint secure tenancy, one of the joint tenants, acting alone, may terminate the tenancy (and security of tenure) by serving a notice to quit on the landlord. A notice to quit must comply both with the statutory requirements of Protection from Eviction Act 1977 s5 (although if served by a tenant, it does not have to be in any prescribed form) and the common law.
Supreme Court (formerly House of Lords)
 
Hammersmith and Fulham LBC v Monk
[1992] 1 AC 478; [1991] 3 WLR 1144; [1992] 1 All ER 1; (1992) 24 HLR 207; (1991) 63 P&CR 373; [1992] 1 EGLR 65; (1992) 90 LGR 30; [1992] 09 EG 135, HL
 
Service of NTQ by one joint tenant terminates tenancy
The defendant had been one of two joint tenants. Without his knowledge, the other tenant gave notice to quit to the council to terminate the tenancy. The defendant did not leave and the council sought possession.
The House of Lords, upholding a series of Court of Appeal decisions, including Greenwich LBC v McGrady (Greenwich LBC v McGrady), held that, in the absence of any express term of tenancy to the contrary, one joint tenant can unilaterally terminate a periodic joint tenancy by giving proper notice to quit. Lord Browne-Wilkinson doubted whether the tenant who gave the notice to quit was in breach of trust towards the other joint tenant, but even if she was, that did not make the notice to quit a nullity. Accordingly, possession was granted.
Harrow LBC v Johnstone
[1997] 1 WLR 459; [1997] 1 All ER 929; (1997) 29 HLR 475; (1997) 95 LGR 470, HL
 
NTQ by one joint tenant terminated the tenancy despite a court order restraining that tenant from excluding the other tenant from the premises
On the separation of joint secure tenants who were married, the husband obtained an order that his wife must not ‘exclude or attempt to exclude [him] from the [house]’. Later she served a notice to quit and was rehoused by the council. The council in turn asserted that the notice had determined the joint tenancy (see Hammersmith and Fulham LBC v Monk (Hammersmith and Fulham LBC v Monk) and sought possession from the husband. The trial judge refused the order and the council’s appeal was dismissed by the Court of Appeal.
The House of Lords allowed the appeal. The wife had not been in ‘contempt’ of the earlier order in giving notice. The earlier order had not been made in any jurisdiction enabling the court to adjust or restrain dealing with property – it had not, for example, been made in matrimonial litigation. At best it had been concerned with rights of occupancy under the tenancy, not with the future of the tenancy itself. The council could not be criticised for acting on the notice it had received. It could not be said that permitting possession to be obtained against the background of the earlier order was an affront to the integrity of the judicial process which ought to be restrained.
Newlon Housing Trust v Al-Sulaimen
[1999] 1 AC 313; [1998] 3 WLR 451; [1998] 4 All ER 1; (1998) 30 HLR 1132; (1998) Times 20 August, HL
 
As NTQ ended tenancy, there was no ‘matrimonial asset’ to dispose of; question of whether husband could restrain wife from serving NTQ left open
A married couple held a joint secure tenancy of their home. The wife left, a decree of divorce was pronounced (it is not clear from the report whether the decree was nisi or absolute) and she then gave unilateral notice to quit, which brought the tenancy to an end: Hammersmith and Fulham LBC v Monk (Hammersmith and Fulham LBC v Monk). The landlords sought possession against the ex-husband. He applied for an adjournment so that he could make an application in the divorce proceedings for (a) an order setting aside the notice to quit on the ground that it was the disposal of a matrimonial asset designed to defeat a transfer order (Matrimonial Causes Act 1973 s37) and (b) transfer into his sole name. HHJ Tibber refused the adjournment and ordered possession. In the Court of Appeal, counsel for the landlords conceded that the court could make an order setting aside the termination of the tenancy on the ground that it was a disposition. The appeal was allowed but the landlord appealed to the House of Lords. There, counsel for the landlord successfully applied for leave to withdraw the concession.
The House of Lords, allowing the appeal, held that, although the surrender of a subsisting proprietary interest could be a disposition, it is essential to the notion of a disposition of property that there should be property which can be disposed of. Here, as the tenancy had been termin-ated, it could not be revived and the husband had no defence to the possession claim. The question of whether an order could have been obtained to restrain the ex-wife from giving a notice to quit was left open.
Sims v Dacorum BC
[2014] UKSC 63; [2015] AC 1336; [2014] 3 WLR 1600; [2015] 1 All ER 834; [2015] HLR 7; [2015]1 P&CR 14; L&TR 10, 12 November 2014
The rule in Hammersmith LBC v Monk did not breach Article 1 of Protocol No 1 or Article 8
Dacorum let a house to Mr Sims and his wife as joint tenants. Initially, the tenancy was an introductory tenancy, but it became a secure tenancy. It was a term of the tenancy that either party could terminate it by giving one month’s notice to quit (clause 100) and that in such circumstances Dacorum would decide whether the remaining tenant would be allowed to remain in the property or be provided with alternative accommodation (clause 101). On the breakup of their marriage, Mrs Sims left the property with their two youngest children and moved into a women’s refuge as she had been the victim of domestic violence from Mr Sims. She then validly terminated the joint tenancy by notice to quit served on the council. There was accordingly no longer any tenancy in legal existence under which Mr Sims could claim the right to occupy the property as a secure tenant, jointly, solely, or in any other recognised legal capacity (Hammersmith and Fulham LBC v Monk (Hammersmith and Fulham LBC v Monk)). Dacorum Council sought possession. Deputy District Judge Wood made a possession order.
Mr Sims’ appeal to the Court of Appeal was refused and he appealed to the Supreme Court.
The Supreme Court dismissed the appeal. Mr Sims had been deprived of his tenancy (a possession) in accordance with the terms of his tenancy. In such circumstances, any argument that the deprivation of his tenancy amounted to a breach of Article 1 of Protocol No 1 was difficult to sustain unless he could show that the authority had operated clause 101 unfairly or irrational, which was also unsustainable: the tenancy had ended because of Mr Sims’ perpetrating domestic violence, Mrs Sims had not been pressurised into serving the notice to quit, the property was larger than Mr Sims reasonably required and the district judge had considered the proportionality of Mr Sims’ eviction. Nor, for the same reasons, had there been a breach of Article 8. The court had considered the proportionality of his eviction and, in the circumstances; the only decision available to the judge was that his proportion was proportionate.
Court of Appeal
 
Bater v Bater; Bater v Greenwich LBC
[1999] 4 All ER 944; (2000) 32 HLR 127; [2000] L&TR 1; (1999) Times 28 September, CA
 
Court had no jurisdiction to set aside NTQ even if it also extinguished right to buy; joint tenant could seek an injunction under Matrimonial Causes Act 1973 or Children Act 1989 restraining other tenantTimes 20 August, HL
Mr and Mrs Bater were joint secure tenants. They claimed the right to buy and the council made a discounted offer to them. However, their marriage later ran into difficulties and Mrs Bater gave notice to the council terminating the joint tenancy. The council began possession proceedings against Mr Bater. He made an application under Matrimonial Causes Act 1973 for the avoidance of a disposition of property. The council served a notice on Mr Bater denying that he had the right to buy as he was no longer a secure tenant.
The Court of Appeal, following Newlon Housing Trust v Al-Sulaimen (Newlon Housing Trust v Al-Sulaimen) held that the notice terminating the tenancy was not a disposition of property for the purposes of Matrimonial Causes Act 1973 s37(2)(b) and so the court had no jurisdiction to set it aside. The nature of the notice did not change because it ended the right to buy as well as the secure tenancy. The right to buy could not be brought to fruition unless the secure tenancy continued to the ultimate point of completion. However, where joint tenants are party to divorce proceedings, the court has wide inherent powers to prevent any act which would have the consequence of diminishing or curtailing the court’s statutory powers to distribute or redistribute capital or income. Similar powers exist where parties are not married but have children under Children Act 1989 and wardship. Accordingly, where the unilateral act of one tenant could destroy the interests of both, the joint tenant who would be prejudiced by service of a notice should seek an undertaking or an injunction.
Birmingham CC v Beech
[2014] EWCA Civ 830; [2014] HLR 38; [2014] PTCR PG20, 17 June 2014
 
The relationship of housing officer and tenant did not give rise to a presumption of undue influence and there was no basis to set aside a notice to quit
In 1994 Mrs Warren succeeded to her tenancy after her husband died in accordance with Housing Act 1985 s88(1)(b). In 2007, Mrs Beech – Mrs Warren’s daughter – moved into the property while looking for their own accommodation. In October 2009, Mrs Warren moved into a residential care home. On 19 February 2010, a housing officer visited Mrs Warren at the care home where she signed a notice to quit by which she gave up her tenancy of the property with effect from 22 March 2010. Mrs Warren died in June 2010. Birmingham sought possession. Keith J made a possession order ([2013] EWHC 518 (QB), May 2013 Legal Action 34, 15 March 2013). He rejected the defendants’ contention that Mrs Warren’s willingness to sign the notice to quit was procured in circumstances amounting to undue influence or unconscionable behaviour on the part of the housing officer.
The Court of Appeal dismissed an appeal. The relationship of housing officer and tenant was not one which gave rise to a presumption of undue influence. There was no relationship of trust and confidence and nothing in the personal relationships which suggested anything close to that. Mrs Warren had capacity to give the notice to quit and had understood its nature and effect.
Bradford Community Housing Ltd v Hussain
[2009] EWCA Civ 763; [2010] HLR 16; 17 June 2009
 
A notice to quit which included the phrase ‘or the day on which a complete period of your tenancy expires next after the end of four weeks from the date of this notice’ was valid
Mr Hussain and Ms Kauser were joint assured tenants. Clause 2.2 of the tenancy agreement provided that the tenant should ‘give the council not less than 28 days’ written notice expiring on any Friday should he/she wish to terminate the tenancy’. The tenants’ relationship broke down and Ms Kauser served a termination notice dated 24 January 2007 giving notice to quit the property ‘with effect from Sunday 25/02/2007 or the day on which a complete period of your tenancy expires next after the end of four weeks from the date of this notice’. Bradford CH brought a claim for possession against Mr Hussain. A district judge made a possession order. HHJ Hawkesworth QC dismissed an appeal.
The Court of Appeal dismissed a second appeal. First, the notice to quit was not ambiguous. Patten LJ said that there was:
no basis for construing the notice so as to exclude the operation of the catch-all provision. It was obviously inserted to ensure that the notice expired at the end of a contractual period of the tenancy if that was not Sunday 25 February and it would have been read by the respondent as intending to terminate the tenancy in accordance with clause 2.2 of the tenancy agreement: … the notice to quit took effect at the end of Friday 23 February … (para 11).
Crawley BC v Ure
[1996] QB 13; [1995] 3 WLR 95; [1996] 1 All ER 724; (1995) 27 HLR 524; (1996) 71 P&CR 12, CA
 
Service of NTQ by one joint tenant was not breach of trust for sale
Mr Ure defended the council’s possession claim on the grounds that: (a) in giving unilateral notice to quit, his wife had acted in breach of the ‘trust for sale’ under which their joint tenancy was held because she had not consulted him (Law of Property Act 1925 s26(3)); and (b) the council could not rely on the notice, because it had been party to the breach of trust in advising and encouraging her to give notice.
The Court of Appeal dismissed his appeal against a possession order. It held that Mrs Ure’s decision to give notice to quit because she no longer wished to be bound was not a ‘positive act’ attracting the consultation requirements of section 26(3).
Derwent Housing Association Limited v Taylor
[2016] EWCA Civ 508; 19 January 2016; [2016] HLR 25
Home rights were extinguished by the expiry of a notice to quit
Mrs Taylor had an assured tenancy in her sole name. She and her husband lived in the property as their matrimonial home. She left in 2013 and, in February 2014, served a notice to quit which was allegedly defective. Derwent accepted it as terminating the tenancy. Mr Taylor remained and defended possession proceedings. A possession order was made. On appeal, Mr Taylor argued that, under Family Law Act 1996 s30(4), his continued occupation was to be treated as occupation by Mrs Taylor as tenant.
The Court of Appeal dismissed the appeal. Mrs Taylor’s notice was sufficient in common law to end the tenancy. Section 30 only applies where there is a continuing entitlement to occupy, not when that entitlement has been ended. There was no occupation or tenancy of Mrs Taylor on which Mr Taylor could base continuing section 30 rights.
Ealing Family Housing Association v McKenzie
[2003] EWCA Civ 1602; [2004] HLR 21, [2004] L&TR 15; (2003) Times 30 October, 10 October 2003
 
The service of a NTQ which did not provide 28 days’ notice amounted to an offer to surrender the tenancy which had been accepted by the landlord
Mrs McKenzie was the sole assured tenant of a property. She lived there with her husband. Mrs McKenzie left the property after she alleged she had been the victim of domestic violence. She served a notice to quit on her landlord which stated her intention to determine the tenancy on the same day. The association closed the rent account, ceased demanding rent and notified Mrs McKenzie’s husband that he was an unlawful occupier. Mrs McKenzie, at the behest of the Association, served a second notice to quit. That notice also failed to give 28 days notice. The Association obtained a possession order. The husband appealed.
The Court of Appeal dismissed the appeal. The service of the first notice to quit was an unequivocal act which demonstrated Mrs McKenzie’s intention to surrender her tenancy. The Association had accepted this offer to surrender her tenancy by closing the rent account and by treating her husband as unlawful occupier. The request for a second notice was not evidence that the Association believed the tenancy not to have been terminated.
Fletcher v Brent LBC
[2006] EWCA Civ 960; [2007] HLR 12, 7 July 2006
Fletcher v Brent LBC
 
NTQ with wrong date but with savings clause valid
Mr and Mrs Fletcher were joint secure tenants of the council. On the breakdown of their relationship, Mrs Fletcher obtained a court order ousting her husband. She later gave notice to quit, ending the tenancy, and was rehoused. The notice was expressed to expire on the same day that it was given or ‘on the first Monday after that date being at least four clear weeks after service’. On his application for homelessness assistance under Housing Act 1996 Part 7, Brent decided that Mr Fletcher was not homeless because the notice was ineffective to end the tenancy and he was still a tenant. The decision was upheld on review and on appeal to the county court.
The Court of Appeal allowed a second appeal. The notice to quit had been valid and had ended the joint tenancy. The question of whether Mr Fletcher had any other right to occupy the property (eg, under a subsequent express or implied licence from the council) – which had not been addressed in the council’s decision-making – was remitted to the council’s reviewing officer to consider.
Greenwich LBC v McGrady
(1982) 6 HLR 36; (1982) 46 P&CR 223; (1982) 267 EG 515; (1982) 81 LGR 288, CA
 
NTQ served by one joint tenant is effective; Housing Act did not apply to protect the former tenant
Mr and Mrs McGrady were joint tenants. They divorced. Mrs McGrady left the premises but later served a notice to quit on the council. Mr McGrady stayed in the premises and the council took possession proceedings.
The Court of Appeal held that, although all joint tenants have to agree to a surrender of a tenancy, a notice to quit served by one tenant is effect-ive. Furthermore, once the tenancy had been determined, Mr McGrady was not entitled to the protection of the Housing Act 1980 (now the Housing Act 1985) because the Act operates to give security where landlords serve notices to quit, not where tenants give notice to quit.
Hackney LBC v Snowden
(2001) 33 HLR 554; [2001] L&TR 60, CA
 
Open to landlord and tenant to agree to treat NTQ as valid and thereby waive the requirement of four weeks’ notice
Ms Pidcock was the sole secure tenant of her home. She made allegations of domestic violence against Mr Snowden, her husband. As a result, the council agreed to rehouse her temporarily. She then signed a notice to quit expressed to take effect three days later and confirmed that she would vacate the premises from that date and was re-housed. Mr Snowden requested that the council transfer the original tenancy to him. The council refused and sought possession of the premises. In his defence Mr Snowden contended that the tenancy had never been validly terminated as the notice had not complied with Protection from Eviction Act 1977 s5(1). HHJ Graham made a possession order, holding that the principle in Elsden v Pick [1980] 1 WLR 898 applied. The parties had agreed to treat the invalid notice as effective and the tenancy had, accordingly, been determined by service of the notice.
An appeal to the Court of Appeal was dismissed. It was open to the parties to agree after service to treat the notice as valid and thereby waive the requirement of four weeks’ notice. It did not matter when that agreement was reached. The fact that the tenant’s spouse had rights under Matrimonial Homes Act 1983 s1 (now Family Law Act 1996 s30) did not restrict the tenant’s right to bring the tenancy to an end. Evidence that the authority had voided the rent account, had not sought further rent and had rehoused the tenant provided sufficient evidence to show that the authority considered the tenancy terminated.
Hounslow LBC v Pilling
[1993] 1 WLR 1242; [1994] 1 All ER 432; (1993) 25 HLR 305; (1993) 66 P&CR 22; [1993] 2 EGLR 59; (1993) 91 LGR 573; [1993] 26 EG 123, CA
 
NTQ served by one joint tenant which did not comply with the statutory requirements was ineffective despite waiver clause
One joint secure tenant, without informing the other, delivered to the council on Friday 6 December 1991 a letter stating, ‘I wish to terminate my tenancy held on the above mentioned property with immediate effect’. The council treated the letter as a notice to quit, terminating the tenancy from the following rent day (Monday 9 December 1991) and brought proceedings to claim possession from the other joint tenant. A clause in the standard-form tenancy permitted the council to waive the usual requirement of four weeks’ notice.
The Court of Appeal held that: (a) the other joint tenant was entitled to rely on the Protection from Eviction Act 1977 (requiring a tenant’s notice to quit to be of a minimum duration of four weeks) – the ‘waiver’ clause in the agreement could not be used by the council and the notice-giver to contract out of that protection; and (b) the attempt to bring the tenancy to an end ‘immediately’ with less than even the minimum common-law notice of one week was akin to an attempt to activate a break clause in the tenancy and, as such, required the participation of both joint tenants. The notice was bad and the appeal against a possession order was allowed.
Notting Hill Housing Trust v Brackley
[2001] EWCA Civ 601; [2002] HLR 212; [2001] 35 EG 106; [2001] L&TR 467; (2001) 82 P&CR D48; (2001) Times 15 June; [2001] 18 EGCS 175(CS), CA
 
Service of NTQ by one joint tenant was not a breach of trust
Mr and Mrs Brackley were joint tenants of a property let by the claimant landlord in March 1997 as a periodic tenancy. The tenancy was terminable on four weeks’ notice. In May 1999 Mrs Brackley left the property and, on the advice of the landlord, served a notice to quit terminating the tenancy. She did not consult Mr Brackley before doing so. The tenancy duly determined and the landlord sought possession of the property, relying on the notice to quit. At trial, Mr Brackley argued that, since the joint tenancy had been held under a trust for land, his wife had acted in breach of trust by not consulting him, a beneficiary under the trust, before giving notice to quit. HHJ Cowell ordered possession of the property. Mr Brackley appealed.
His appeal was dismissed. The reasoning in Hammersmith and Fulham LBC v Monk (Hammersmith and Fulham LBC v Monk) and Crawley BC v Ure (Crawley BC v Ure), decided under the Law of Property Act 1925, applied. The giving of a notice to quit by a joint tenant was an indication by that joint tenant of his or her unwillingness that the tenancy should continue beyond the end of the period when the notice took effect. It was not the exercise by a trustee of a power or duty or ‘function’ within the meaning of the word in Trust of Land and Appointment of Trustees Act 1996 s11.
Pennell v Payne
[1995] QB 192; [1995] 2 WLR 261; [1995] 2 All ER 592; [1995] 1 EGLR 6, CA
 
Service of NTQ by tenant on landlord also ended subtenancy
The tenant of a farm sublet without consent. The tenant subsequently served an upward notice to quit on the landlord.
The Court of Appeal, overruling Brown v Wilson (1949) 208 LT 144, held that service of the notice to quit meant that the subtenancy also came to an end and that the landlord was entitled to possession against the subtenant.
High Court
 
Muema v Muema
[2013] EWHC 3864 (Fam), 10 June 2013
 
The rule that a notice to quit was not a disposition for the purposes of Matrimonial Causes Act 1973 s37 did not infringe Article 8Times 20 August, HLTimes 20 August, HL
Mr and Mrs Muema were married in 2001. They had two children. In January 2006, a local authority granted them a joint weekly tenancy of a three-bedroom maisonette. The marriage fell into difficulties. In June 2009, Mrs Muema vacated the property with the children. In October 2009, an exclusion order was made requiring Mr Muema to move out. It appears that Mrs Muema and the children moved back in. In January 2010, as a result of rent arrears, the council obtained a suspended possession order. Warrants were obtained but suspended. In July 2011, Mrs Muema wished to move, and was offered homeless accommodation. In January 2012, she signed a notice to quit terminating the weekly joint tenancy (Hammersmith and Fulham LBC v Monk (Hammersmith and Fulham LBC v Monk)). Mr Muema applied under Matrimonial Causes Act 1973 s37(2)(b) to set aside the notice to quit. District Judge Major concluded that that application could not succeed, but adjourned to the High Court the question as to whether or not there is incompatibility between Article 8 and the rule in Newlon Housing Trust v Alsulaimen (Newlon Housing Trust v Al-Sulaimen), namely that a notice to quit is not a disposition for the purposes of section 37(2)(b).
After referring to Sims v Dacorum BC (Sims v Dacorum BC), Peter Jackson J concluded that:
… it is not correct to assert that the decision in Alsulaimen is no longer good law. The overall framework enables tenants to have their rights under Article 8 respected during the course of the process of possession proceedings (para 12).
Even if it were necessary or appropriate for Article 8 rights to extend to the scope of section 37 applications, he could not see any arguable case for the court exercising such a power in favour of Mr Muema. It was ‘essentially for [the council] to exercise its distributive function in relation to its housing stock, and … [it was] entitled to the view that other families have greater need of this property than this family’ (para 14). The children would continue to have a roof over their heads with their mother, until such time as their father could also provide one for them.
Forfeiture
 
Forfeiture is the procedure which allows a landlord to bring to an end a contractual fixed-term tenancy before the fixed period of time for which the lease was originally granted expires. It is not available to landlords of assured tenants. Generally, it is only available where the tenant has breached a term of the tenancy, the tenancy confers the landlord a right of re-entry and the landlord has satisfied various statutory criteria, ie served a notice under Law of Property Act 1925 s146 (although this does not apply where the tenant has failed to pay rent) and obtained a determination from a court or tribunal that there has been a breach of the lease. Nor may a landlord forfeit a lease if he has waived his right to forfeit. The act of bringing a claim for possession brings the tenancy to an end (Serjeant v Nash, Field & Co [1903] 2 KB 304, CA)), but the tenancy is reinstated as if it had not been determined if relief from forfeiture is granted (Dendy v Evans [1910] 1 KB 263, CA). In the interim period, for certain purposes, the tenancy is treated as continuing (Borrack v Ahmed [1965] 2 QB 220, QBD). The ordinary rule is that once a lease is forfeited all under-leases are also terminated. The one exception is where the under-lessee is a lawful assured or Rent Act tenant. In those circumstances, the freeholder becomes the under-lessee’s landlord.
Supreme Court (formerly House of Lords)
 
Billson v Residential Apartments Ltd
[1992] 1 AC 494; [1992] 2 WLR 15; [1992] 1 All ER 141; (1992) 24 HLR 218; (1991) 63 P&CR 122; [1992] 1 EGLR 43; [1992] 91 EG 91, HL
 
Tenant can apply for relief from forfeiture after forfeiture by re-entry without court order
Major alterations were carried out by a lessee in breach of covenant. The freeholder served a Law of Property Act 1925 s146 notice and peaceably re-entered – the flat was vacant and so Protection from Eviction Act 1977 s2 did not apply. The tenant applied for relief from forfeiture.
The House of Lords held that a tenant may apply for relief against forfeiture under Law of Property Act 1925 s146 after the landlord has forfeited by re-entry without a court order. Lord Templeman stated:
A tenant may apply for … relief from forfeiture under section 146(2) after the issue of a section 146 notice but he is not prejudiced if he does not do so. A tenant cannot apply for relief after a landlord has forfeited a lease by issuing and serving a writ, has recovered judgment and has entered into possession pursuant to that judgment. If the judgment is set aside or successfully appealed, the tenant will be able to apply for relief in the landlord’s action but the court in deciding whether to grant relief will take into account any consequences of the original order and repossession and the delay of the tenant. A tenant may apply for relief after a landlord has forfeited by re-entry without first obtaining a court order for that purpose, but the court in deciding whether to grant relief will take into account all the circumstances including delay on the part of the tenant ([1992] 1 All ER at 149).
Lord Templeman also indicated that he considered the practice of awarding indemnity costs as a condition of granting relief was ripe for reconsideration. The case was remitted for reconsideration by the High Court (see Billson v Residential Apartments Ltd (No 2)).
Court of Appeal
 
Adagio Properties v Ansari
[1998] 35 EG 86, CA
 
Section 146 notice did not require particulars of each defect
A Law of Property Act 1925 s146 notice stated that the tenant had breached his obligations by ‘making alterations so as to divide [the flat] into two separate studio flats without permission’. The Court of Appeal held that it fulfilled the statutory purpose of giving the tenant the opportunity to remedy the breach and was valid. A notice served under section 146 does not require the landlord to give particulars of each defect. The Court of Appeal followed a passage in Fox v Jolly [1916] AC 1, HL, where Lord Buckmaster, LC said:
All that the landlord is bound to do is to state particulars of breaches of covenants of which he complains and call upon the lessee to remedy them. The means by which the breach is to be remedied is a matter for the lessee and not for the lessor. In many cases specification of the breach will of itself suggest the only possible remedy.
In Adagio Properties the notice did comply with these requirements. There is no need to overburden a notice with detail when the alleged breach is perfectly clear. The tenant knew what he had done in order to make the alteration, and so knew what was required to turn it back again into a single dwelling.
Belgravia Property Investment and Development Co Ltd v Webb
[2001] EWCA Civ 2075; [2002] L & TR 29, 18 December 2001
 
Unlawful to forfeit a lease without a court order where premises lawfully occupied as a residence by a sub-tenant
Belgravia were the freehold owners of a block of residential flats. Mr Webb held a lease of one of those flats for a term of 199 years. His lease did not prohibit sub-letting and he sub-let his property to Mr West on a Rent Act tenancy. Mr Webb ceased to pay the ground rent and service charges to Belgravia and had, by all accounts, disappeared. Belgravia subsequently peaceably re-entered the property while Mr West was absent. On the same day, Belgravia granted a new long lease of the property to Quantumrange Limited. Mr West returned and with the assistance of the police obtained re-entry to the property. Both Belgravia and Quantumrange sought possession and a declaration that Mr West’s tenancy had ended when Belgravia had peaceably re-entered the flat. HHJ Dedman made an order for possession against Mr Webb but dismissed the claim for possession against Mr West and made a declaration that the second defendant remained a Rent Act protected tenant of the property. The second claimant appealed.
The appeal was dismissed. Protection from Eviction Act 1977 s2 provides that it is unlawful to forfeit a lease by peaceably re-entering if a property is lawfully occupied as a residence. As that was the case here the act of peaceably re-entering had not determined Mr Webb’s leasehold interest. The granting of the lease to Quantumrange therefore meant it had become Mr Webb’s landlord as it held a concurrent lease. Mr Webb’s interest had only determined once a claim for possession was issued. However, as Mr Webb’s lease contained no prohibition on sub-letting Mr West’s tenancy did not determine on Mr Webb’s lease coming to an end and he was now Quantumrange’s tenant. His liability to pay Quantumrange rent only arose once Mr Webb’s interest ceased.
British Petroleum Pension Trust v Behrendt
(1986) 18 HLR 42; (1985) 52 P&CR 117; [1985] 2 EGLR 97, CA
 
Relief from forfeiture properly refused where premises had been used for prostitution
The Court of Appeal held that a trial judge had properly exercised his discretion in not granting relief from forfeiture where premises had been used for prostitution over a number of years, in breach of a covenant against immoral user. Even though the prostitution had ceased, the ‘stigma’ which attached to the premises remained.
Central Estates (Belgravia) Ltd v Woolgar (No 2)
[1972] 1 WLR 1048; [1972] 3 All ER 610; (1972) 24 P&CR 103, CA
 
Breach waived by acceptance of rent; relief would otherwise be granted on facts
A lease contained a covenant on the tenant’s part not to cause nuisance, damage, annoyance, inconvenience or disturbance. The tenant was convicted of allowing the premises to be used as a brothel and, as a result, the landlords’ agents served a Law of Property Act 1925 s146 notice. Staff were instructed not to demand rent, but the memorandum did not reach a junior member of staff who was responsible for sending out rent demands. As a result, the tenant paid rent.
The Court of Appeal held that the breach had been waived. To constitute waiver it is sufficient if there is an unequivocal act done by the landlord which recognises the existence of the lease after having knowledge of the ground for forfeiture. The intentions of the parties are irrelevant. The landlords were not entitled to claim possession. In any event, if the breach had not been waived, the Court of Appeal would have granted relief from forfeiture. The lessee was sick and aged and, apart from the short period of immoral user, a respectable person. The value of the house and the estate on which it was situated had not diminished as a result of the immoral user.
Chrisdell Ltd v Johnson and Tickner
(1987) 19 HLR 406; (1987) 54 P&CR 257; [1987] 2 EGLR 123, CA
 
No waiver despite acceptance of rent where breach not fully known by landlord
Landlords suspected that, in contravention of an absolute prohibition against assignment, the tenant had assigned his tenancy. They did not, however, know ‘all necessary facts to establish a breach’ and continued to accept rent.
The Court of Appeal held that they had not waived the breach of covenant against assignment.
Cooper v Henderson
(1982) 5 HLR 1; (1982) 263 EG 592, CA
 
Breach of covenant regarding user only waived for past breaches
A tenant covenanted not to use premises as a private residence. The landlord brought forfeiture proceedings alleging breach of that covenant. The tenant defended, claiming that the landlord knew from the commencement of the tenancy that he had been occupying as a residence and that the breach had been waived.
The Court of Appeal dismissed his appeal against a possession order. A breach of covenant requiring or prohibiting a particular user is a continuing breach. Waiver by conduct applies only to past breaches. A landlord may at any time bring forfeiture proceedings relying on any continuing breach which has occurred after the waiver.
Cornillie v Saha and Bradford and Bingley Building Society
(1996) 28 HLR 561; (1996) 72 P&CR 147, CA
 
Waiver of breach
The landlord of a flat held on a long lease was aware of illegal subletting at the time when she commenced proceedings against the lessee seeking access to the flat.
The Court of Appeal held that the commencement of such proceedings with knowledge amounted to a waiver. In determining whether there has been waiver of a breach of covenant against subletting, a court should ask (a) whether the alleged act of waiver unequivocally recognises the subsistence of the lease; (b) whether the landlord had knowledge of the breach of covenant at the time of the alleged act of waiver; and (c) whether the act of recognition was communicated to the lessee.
Courtney Lodge Management Ltd v Blake
[2004] EWCA Civ 975; [2005] L&TR 2; (2005) 1 P&CR 264; (2004) Times 15 July
 
Four days not reasonable period to respond to breach; nuisance by subtenant
The claimant landlord leased a flat to Mr Blake. The lease contained a covenant on Mr Blake’s part not to cause a nuisance to the landlord or any other residents in the block. Mr Blake granted an underlease to Atlantic Lodge Management Ltd for use of the flat as temporary accommodation. Atlantic Lodge granted a sub-underlease to a local housing authority which granted a non-secure tenancy. From March 2003 there were complaints of nuisance caused by the tenants of the flat. On 2 September 2003 the landlord served a Law of Property Act 1925 s146 notice on Mr Blake. On 8 September 2003 Mr Blake instructed Atlantic Lodge to terminate the non-secure tenancy agreement with the tenants. As a result, a notice to quit was subsequently served. The claimant landlord issued proceedings on 2 October 2003 seeking forfeiture and damages based on the disturbances by the tenants. In the county court a recorder found that Mr Blake had been in breach of the terms of the head lease since his inaction amounted to ‘suffering’ a nuisance to continue. The claimant was therefore entitled to forfeiture. Mr Blake appealed that decision.
The Court of Appeal allowed his appeal. Mr Blake had breached the terms of the lease. A lessee, bound by covenants contained within a head lease to prevent a nuisance, is not entitled to rely on inability to prevent a sublessee from causing a nuisance where he failed to mirror the provisions of the head lease in the sublease. However, the order for possession was set aside.Mr Blake had taken steps to abate the nuisance four working days after the section 146 notice had been served. Four working days is not a reasonable period to respond to a section 146 notice.
Croydon (Unique) Ltd v Wright
[2001] ChD 318; [2000] 2 WLR 683; [1999] 4 All ER 257; [2000] L&TR 20; [1999] 40 EG 189; (2000) 32 HLR 670; (1999) Times 24 August, CA
 
Creditors with charging orders to be given notice of possession proceedings
The defendant was a lessee with a 125-year lease. Creditors obtained a charging order to secure the payment of a debt of £233,887 and a caution to protect the charging order was registered at the Land Registry. Later the lessee fell into arrears with his rent. His landlord brought a claim for possession to forfeit the lease. He did not, however, notify the creditors. A possession order was obtained but it failed to allow a period of not less than four weeks before the order took effect in accordance with County Courts Act 1984 s138. The creditors only learnt about the possession order when the landlord attempted to remove the caution over a year later. They applied for relief on condition that they discharge the arrears of rent. The landlords contended that relief should be refused as there had been no application within six months (s139(9A)). The creditors applied to set aside the possession order.
The Court of Appeal, by a majority, set aside the possession order, holding:
1)It was defective in not giving four weeks for the outstanding rent to be paid. The court had had no jurisdiction to make that order.
2)Section 138(9C) allows holders of charging orders to seek relief from forfeiture. In view of this, CCR Order 6 r3(2) (now CPR PD55A, para 2.4)required such persons to be given notice of possession proceedings. It would be manifestly unjust to deprive the holder of a charging order who had registered his interest of any right to apply for relief from forfeiture.
Note: All of these points apply equally to mortgagees of long leases.
Eaton Square Properties Ltd v Beveridge
[1993] EGCS 91, CA
 
After lease forfeited, occupant not in occupation at date of forfeiture not protected by Protection from Eviction Act 1977
A tenant assigned a 12-year lease of residential premises. The landlord took proceedings for forfeiture against the assignee, relying on rent arrears, obtained an order for possession and regained possession after executing a warrant for possession. By consent, the assignor then obtained an order for possession against the assignee and went into possession. The landlords then took proceedings against the assignor under CCR Order 24 (summary procedure for possession) and obtained a possession order. The assignor appealed.
The Court of Appeal dismissed the appeal, holding that the lease had already been forfeited and that the assignor had not been entitled to rely on the Protection from Eviction Act 1977 at the date of forfeiture, because at that date she was not residing in the premises.
Escalus Properties Ltd v Robinson
[1996] QB 231; [1995] 3 WLR 524; [1995] 4 All ER 852; (1996) 28 HLR 338; (1996) 71 P&CR 47; [1995] 2 EGLR 23, CA
 
Relief available to mortgagees
The Court of Appeal held that where a lease which contains a clause reserving the service charge as additional rent there was no requirement to serve a s146 notice. The Court of Appeal further held that relief against forfeiture can be granted to mortgage lenders or under-lessees retrospectively on terms that the lenders pay all rent and service charges due. Such relief is available under County Courts Act 1984 s138 (in the county court) or Senior Courts Act 1981 s38 (in the High Court) where service charges are reserved as rent. Otherwise the jurisdiction comes from Law of Property Act 1925 s146. In such circumstances, mortgage lenders are not obliged to pay mesne profits from the date of forfeiture, which will generally be higher than rent and service charges.
Note: in Freeholders of 69 Marina St Leonards on Sea v Oram (see Freeholders of 69 Marina, St Leonards-on-Sea – Robinson, Simpson & Palmer v Oram and Ghoorun) the Court of Appeal held that a s146 notice did have to be served when service charges were reserved as rent. It is likely, however, that this decision is per incuriam as Escalus was not referred to.
Expert Clothing Service & Sales Ltd v Hillgate House Ltd
[1985] 2 All ER 998, CA, 2 April 1985
 
A positive covenant that required a lessee to carry out building works by a certain date was capable of being remedied; an offer to vary the lease, after proceedings for forfeiture had been brought, did not waive the lessor’s right to forfeit the lease
The parties entered into a deed of variation which required the lessee to reconstruct the building subject to the lease into three floors of offices or a gymnasium by a certain date. The lessee failed to comply with the requirement and the lessor served them with section 146 notice. The lessor, however, after issuing the claim for forfeiture, wrote to the lessee’s solicitors to propose that the lease be varied. HHJ Paul Baker QC found that the breach was incapable of remedy and had not been waived and refused the lessee’s application for relief. The lessee appealed.
The Court of Appeal allowed the appeal. Generally the breach of a positive covenant will be capable of being remedied even if it requires an act do be done by a certain date. It is only where harm has been irretrievably done, eg immoral use over a long period, that a positive covenant will be incapable of remedy. There was no reason why the lessee could not remedy the breach by carrying out the works to the property. The judge had been right, however, to find that the breach had not been waived. Unlike in cases where rent had been received or demanded, the court was entitled to look at all the circumstances to decide whether the lessor’s actions amounted to an unequivocal intention that the lease continued. The facts did not support the lessee’s contention that the breach had been waived.
Freifeld v West Kensington Court Ltd
[2015] EWCA Civ 806; [2016]1 P&CR 5; [2016] L&TR 5, 30 July 2015
Relief from forfeiture may be granted where the breaches of the lease are conscious and deliberate
Following breaches of covenant, a landlord of commercial premises forfeited the head lease. The lessees applied to the court for relief from forfeiture. HHJ Gerald found that the breaches were ‘conscious and deliberate’. He refused relief.
The Court of Appeal allowed the lessees’ appeal and granted relief from forfeiture. It noted that relief can still be granted even though a breach is deliberate. Special circumstances do not have to be shown. The value of the leasehold interest is a relevant consideration. As
‘a matter of principle, the exercise of the court’s wide discretion should not enable a landlord to take advantage of a breach by which he is not irreparably damaged’. [43]
If a leasehold interest has substantial capital value and the disregard of a prior court order has been due to a mistake as to the effect of a stay, it may be disproportionate and unjust for the tenant’s lease to be forfeited (Magnic Ltd v Mahmood Ul-Hassan [2015] EWCA Civ 224). In this case, the judge had failed to consider the question of the windfall the landlords would gain ‘as a self-standing consideration … on its own merits’. ‘The windfall point [was] about proportionality. The appellants’ egregious conduct [was] not relevant to the question of the windfall.’ [47]
Greenwood Reversions Ltd v World Environment Foundation Ltd
[2008] EWCA Civ 47; [2008] HLR 31; [2009] L&TR 2, 6 February 2008
 
A demand for rent served on a former tenant did not amount to a waiver where the lease had been assigned unlawfully; the Court of Appeal left open the question of whether a demand for rent constitutes a waiver
Greenwood were the freehold owners of a block of residential flats. Dr Mehra was a tenant of a flat within the block. Greenwood obtained judgment against Dr Mehra for arrears of rent. Dr Mehra refused to pay. Some years later Dr Mehra assigned his leasehold interest to World Environment Foundation Ltd (a company to which he was closely linked). This assignment was in breach of the lease because he did not seek the consent of Greenwood for the assignment. When Greenwood discovered that the lease had been assigned they ceased demanding rent or service charges but wrote to Dr Mehra demanding that he pay the judgment debt and the arrears of rent that had subsequently accrued. Greenwood issued a claim for possession to forfeit the lease. World Environment Foundation contended that the unlawful assignment had been waived when the demand for rent was served on Dr Mehra. HHJ Ryland made an order for possession and refused relief.
The Court of Appeal dismissed the appeal. A demand for rent to a former tenant did not amount to a waiver. In the circumstances, it was unnecessary for the Court of Appeal to determine – for the first time – whether an unequivocal demand for rent amounted to a waiver as had been decided at first instance in Segal Securities Ltd v Thoseby [1963] 1 QB 887 and David Blackstone Ltd v Burnetts (West End) Ltd [1973] 1 WLR 1487.
Greenwich LBC v Discreet Selling Estates Ltd
(1991) 61 P&CR 405, 20 June 1990
 
Where a tenant had failed, after a section 146 notice had been served, to bring a property back into a state of repair there was no requirement to serve a second section 146 notice where the property had either improved or deteriorated; nor did the demand and acceptance of rent after the first notice waive the landlord’s right to forfeit as the breach was ongoing and therefore arose afresh every day
Hynes v Twinsectra Ltd
(1996) 28 HLR 183; [1995] 2 EGLR 69; [1995] 35 EG 136, CA
 
Where forfeiture proceedings dismissed, no need to apply for relief from forfeiture
Where a claim for forfeiture of a lease is dismissed, the lease is restored to its full existence and the lessee is entitled to apply to acquire the freehold under the Leasehold Reform Act 1967. When the forfeiture proceedings are dismissed, there is no need to apply for relief from forfeiture.
Khar v Delbounty Ltd
(1998) 75 P&CR 232; [1996] NPC 163, CA
 
Terms of relief from forfeiture varied
Over a period of six years the lessor of a flat let on a 99-year lease started five sets of proceedings for arrears of rent and maintenance charges. After a further default and service of a Law of Property Act 1925 s146 notice, the landlord forfeited the lease and re-let the flat on an assured shorthold tenancy. Eleven months later, the lessees sought relief from forfeiture, which was granted.
The Court of Appeal held that:
•Unless a lease states that maintenance charges are to be treated as rent, they are not rent.
•In the context of relief from forfeiture there is no difference in substance between a covenant to pay rent and a covenant to pay mainten-ance charges.
•The master had been right to grant relief from forfeiture, but the terms of relief were varied to provide for the flat to be sold and for the landlord to take out the arrears of maintenance charges from the proceeds of sale. Completion was to be delayed until the tenant left.
Maryland Estates v Bar-Joseph
[1999] 1 WLR 83; [1998] 3 All ER 193; (1999) 77 P&CR 150; (1999) 31 HLR 269; [1998] 27 EG 142, CA
 
‘All the rent in arrear’ means the rent payable up to the date stated in the order for relief; the court should assume that the lease has continued and with it the liability to pay rent and service charges
The plaintiffs, freehold owners of premises held on a long lease, brought forfeiture proceedings in the High Court based on arrears of rent and service charges. The lease provided that the service charges were deemed to be sums due by way of additional rent. The action was transferred to the county court. By 15 August 1996, the lessees had paid into court an amount equivalent to the arrears claimed in the writ, interest and costs, but did not pay into court sums which had fallen due after the service of the writ. On 28 October 1996, the landlord applied for possession unless within 28 days the tenants paid rent and service charges including sums which had fallen due since issue. HHJ Diamond QC made an order for possession ([1997] 46 EG 155) but gave automatic relief from forfeiture provided that ‘all the rent in arrear’ and costs of the action were paid (County Courts Act 1984 s138(3)). He held that ‘all the rent in arrear’ referred to the rent due at the date of forfeiture – ie, the date of service of the summons – not at the date of payment.
The Court of Appeal, allowing an appeal by the landlords, held that the words used in s138(3), which provides that relief from forfeiture may be granted if ‘the lessee pays into court … all the rent in arrear’ were not to be construed to mean that the court could order payment only of the rent in arrears at the date of the summons. It was to be assumed that the lease continued after service of the summons, that the tenant remained under an obligation to pay the sum reserved in the lease as rent and that ‘all the rent in arrear’ means the rent payable up to the date stated in the order.
Metropolitan Properties Co Ltd v Cordery
(1980) 39 P&CR 10; (1979) 251 EG 567, 27 March 1979
 
A landlord was taken to have knowledge that a flat had been sub-let in breach of covenant where its employee was aware that the flat had been sub-let; the acceptance of rent therefore waived the landlord’s right to forfeit
Mohammadi v Anston Investments
[2003] EWCA Civ 981; [2004] HLR 8; [2004] L&TR 6, 16 July 2003
 
A landlord could not rely on service charge arrears in a claim for forfeiture where it had not first obtained an admission or determination that the sums were payable under Housing Act 1996 s81
Anston were the owners of a block of flats. Mrs Mohammadi was the leaseholder owner of a flat within the block. The service charge was not reserved as rent. Mrs Mohammadi’s flat suffered from water penetration. After several years of this problem, Mrs Mohammadi began to withhold payments of rent and the service charge and then issued disrepair proceedings against Anston. Anston served a section 146 notice and then counterclaimed for forfeiture. Mrs Mohammadi obtained damages but they were not sufficient to extinguish her arrears. Anston were granted possession and Mrs Mohammadi was granted relief on terms she clear the remaining arrears of rent and service charges. Mrs Mohammadi appealed.
The Court of Appeal allowed the appeal in part. Housing Act 1996 s81 required Anston to have obtained a determination or admission that the service charge arrears were payable. It had not done so and therefore forfeiture on the basis of the outstanding service charges was forbidden. It could not therefore be a term of relief that Mrs Mohammadi pay the outstanding service charge. The judge should have allowed Mrs Mohammadi to amend to rely on section 81. In any event, it was probably correct that a court had to consider if section 81 had been complied with even if it was not pleaded.
Patel v K & J Restaurants Ltd
[2010] EWCA Civ 1211; [2011] L&TR 6, 28 October 2010
 
Relief form forfeiture granted where giving vacant possession to the freeholder would be out of all proportion to the breaches
The claimants owned the whole of a building which consisted of flats and business premises. The defendant’s lease included a covenant not to use the premises for any illegal or immoral purpose. The police informed the defendant by telephone that one of the flats was being used by a subtenant as a brothel and later served notices confirming this. The defendant took no action. The claimants gave notice under Law of Property Act 1925 s146, stating that the breach was not capable of remedy. The defendant evicted the relevant subtenant. In subsequent proceedings, HHJ Bailey dismissed a claim for forfeiture and possession. The claimants appealed.
The Court of Appeal allowed the appeal in part. Although there was a breach of covenant, it was appropriate to grant relief against forfeiture as the breaches were not wilful and to grant vacant possession to the freeholder would be out of all proportion to the breaches or any resulting damage.
R v Paulson
[1921] 1 AC 271, 2 August 1920
 
A provision of a lease that purports to exclude or limit the circumstances in which forfeiture may be waived by the landlord is ineffective
Reichman v Beveridge
[2006] EWCA Civ 1659; [2007] L&TR 18; (2007) Times 4 January, 13 December 2006
 
Landlord not under duty to mitigate loss
The claimants let office premises to the defendants, who were solicitors, on a five-year lease. The defendants ceased to practice as solicitors. They did not pay rent from March 2003. The claimants sued for those arrears. The defendants served a defence asserting that the claimants had failed to mitigate their loss by failing to instruct agents to market the premises, failing to accept the offer of a prospective tenant who wanted to take an assignment or a new lease, and failing to accept an offer from one of the defendants to negotiate payment of a consideration for surrender of the defendants’ lease. District Judge Kubiak was asked to determine as a preliminary issue ‘whether it is necessary as a matter of law for a landlord to mitigate his loss when seeking to recover arrears of rent’. She held that there was no such duty. An appeal by one of the defendants was dismissed by HHJ Reid QC.
The Court of Appeal dismissed a second appeal. After reviewing authorities from courts in this country and the Commonwealth, it held that the defendants’ defence was ‘not open’ to them.
Safin (Fursecroft) Limited v The Estate of Dr Said Ahmed Said Badrig (deceased)
[2015] EWCA Civ 739; [2016] L&TR 11, 10 July 2015
A court, which had granted relief from forfeiture on condition that payments be made in a particular time, could extend time for the payments to be made
Safin was the leasehold owner of a block of flats. In 1970, it granted a sub-underlease of a flat for a term of 63 years to Dr Badrig. In 2012 Safin commenced proceedings for possession against the Estate of Dr Said Ahmed Said Badrig (Deceased) for non-payment of rent and service charge. The claim was settled by a consent order which provided relief form forfeiture if payments were made within a certain time. They were not made in time, but all sums were received slightly less than two months after the deadline. The defendants made an application to extend the time for payment. HHJ David Mitchell granted the extension. Safin appealed.
The Court of Appeal dismissed the appeal. The judge, in granting the defendant an extension of time, had not made any error of principle or wrongly taken into account matters he ought not to have done or wrongly failed to take into account matters that he should have done. His decision was not outside the range within which reasonable disagreement is possible. He had power to extend the time limits in the consent order. He was correct in exercising his discretion in accordance with the principles and guidance in Pannone v Aardvark Digital Ltd [2011] EWCA Civ 803, [2011] 1 WLR 2275.
Although the power to extend time should be exercised sparingly in such a case as this, he was right to take into particular account that the context was one in which a tenant sought relief from forfeiture.
It is well established that the court regards a condition of re-entry under a lease as merely being security for the rent. That is why, where the court has granted relief from forfeiture on condition of payment of arrears of rent or other action by the tenant by a specified date, the court will grant further time if it would be just and equitable to do so. [73]
Savva v Houssein
(1997) 73 P&CR 150; [1996] 2 EGLR 65; [1996] 47 EG 138, CA
 
Tenant’s breach of a negative covenant may be capable of remedy
In breach of a covenant in his lease, the tenant put up signs outside his property and altered the premises. Before issuing forfeiture proceedings, the landlord served a Law of Property Act 1925 s146 notice stating that the breach was incapable of remedy. The claim for possession was dismissed because the county court judge found that the breach was capable of remedy and the notice was invalid because it did not require the tenant to remedy the breach.
The Court of Appeal dismissed the landlord’s appeal. A tenant’s breach of a negative covenant is capable of remedy for the purposes of Law of Property Act 1925 s146(1) if the effect of the breach can be effectively removed.
Sinclair Gardens Investments (Kensington) v Walsh
[1996] QB 231; [1995] 3 WLR 524; [1995] 4 All ER 852; (1996) 28 HLR 338; (1996) 71 P&CR 47; [1995] 2 EGLR 23, CA
 
Date from which relief should be granted
Mortgagees sought relief from forfeiture. Although the lessors accepted that relief was available, a dispute arose over the date from which relief should be granted.
The Court of Appeal held that:
1)Sums claimed as service charges are ‘rent’ where leases state that service charges are deemed to be due as additional rent.
2)In rent-only cases, mortgagees are automatically entitled to retrospective relief from forfeiture under County Courts Act 1984 s138 – see also United Dominions Trust v Shellpoint Trustees [1993] 4 All ER 310, CA.
3)The position is exactly the same under Senior Courts Act 1981 s38 where proceedings are commenced in the High Court.
4)In one of the cases where service charges were not recoverable as rent, the mortgagee was entitled to relief under Law of Property Act 1925 s146(2) or (4). Relief was no longer restricted under s146(2) to those with privity of contract or estate with the lessor.
Smith v Spaul
[2002] EWCA Civ 1830; [2003] QB 983; [2003] 2 WLR 495; [2003] 1 All ER 509; [2003] 17 EG 148; [2003] HLR 38; [2003] L&TR 17; [2003] 2 P&CR 21; (2002) Times 28 December
 
Lessee required to be served under section 146(1) is person bound to remedy a breach
The Halifax Building Society obtained possession of a flat from a lessee who had defaulted under the terms of a mortgage. Smith, the freeholder of the block, served a notice on Halifax under Law of Property Act 1925 s146 as a result of alleged breaches of covenant to keep the property in repair. Spaul subsequently bought the flat at auction from Halifax.
The Court of Appeal held that, even if a mortgagee is in possession, it is not the appropriate recipient of a notice under section 146(1). Although the expression ‘the lessee’ is defined in very wide terms by section 146(5)(b), the lessee required to be served under section 146(1) is the person who vis-à-vis the lessor is bound to remedy a breach or to make compensation in money. The relationship of lessor and lessee is unaffected by the mortgage, even if the mortgagee takes possession. Target Home Loans Ltd v Izza Ltd [2000] 1 EGLR 23 was disapproved.
Swordheath Properties Ltd v Bolt
[1992] 2 EGLR 68; [1992] 38 EG 154, CA
 
‘The return day’ in forfeiture proceedings is date fixed for first hearing
County Courts Act 1984 s138(2) provides that if, in forfeiture proceedings in a county court, a lessee pays all arrears and costs into court not less than five clear days before the return day, the lessee is entitled automatically to relief from forfeiture.
The Court of Appeal held that ‘the return day’ is the date of the first hearing which is typed on the summons (now claim form). In this case, the first hearing was treated as a hearing for directions. The defendants subsequently paid the arrears of rent, but not the costs. It was held that the action had not ‘ceased’ within the meaning of section 138(2) and that the plaintiffs were entitled to the costs of a subsequent hearing.
Thomas v Ken Thomas Ltd
[2006] EWCA 1594; [2007] L&TR 21, 9 October 2006
 
Payment of rent operated to waive breach where landlord did not return rent
In May 2004, the claimant let a warehouse to the defendant on a ten-year lease. The defendant paid rent until October 2004, but without the VAT which was due. Owing to financial difficulties, it did not pay the rent which was due on 1 November 2004. Payments of some sums were made by CHAPS in December 2004 and January 2005. They were not returned by the claimant. In February 2005 the claimant began forfeiture proceedings, based on non-payment of November’s rent and the VAT. The defendant argued that, by not returning the sums paid in December and January, the claimant had waived the breaches of covenant and so was unable to rely on them for forfeiture of the lease. HHJ Darroch found for the claimant.
The Court of Appeal allowed the defendant’s appeal. Subsequent demands for and acceptance of rent are classic ways in which a landlord can waive the right to forfeit. It is not necessary that the landlord should intend to waive the right to forfeit. Where rent is paid into a landlord’s bank account despite his instruction to the bank not to receive it, if the landlord takes no steps to repay it to the tenant, that is sufficient acceptance to amount to a waiver.
High Court
 
Ashton v Sobelman
[1987] 1 WLR 177; [1987] 1 All ER 755; [1987] 1 EGLR 33; (1987) 231 EG 303, ChD
 
Landlord cannot forfeit head lease by agreement with subtenant
A landlord cannot forfeit a head lease merely by coming to an agreement with an existing subtenant that locks should be changed and that the subtenant can remain in occupation on the same terms as the head lease. The landlord must show an unequivocal intention to re-enter the premises.
Billson v Residential Apartments Ltd (No 2)
[1993] EGCS 150, ChD
 
Relief refused where nine planning enforcement notices served
Although the House of Lords had held that the courts do have power to grant relief from forfeiture under Law of Property Act 1925 s146 after re-entry where the landlord has not taken court proceedings (Billson v Residential Apartments Ltd), on the lessee’s remitted application, relief from forfeiture was refused. Mr Morrison QC, sitting as a Deputy High Court Judge, took into account nine enforcement notices which had been served alleging breaches of planning permission and the lack of any reliable evidence that the lessees would comply with the terms of the lease in future.
Church Commissioners for England v Nodjoumi
(1986) 51 P&CR 155, ChD
 
Right to forfeit for rent arrears not waived by section 146 notice regarding assignment
Where a tenant already owed arrears of rent, service of a notice in accordance with Law of Property Act 1925 s146, relating to an alleged unlawful assignment, did not amount to an unequivocal affirmation of the continuing existence of the lease. The landlord had not waived its rights to forfeit based on the arrears of rent.
Cussens v Realread Ltd
[2013] EWHC 1229 (QB)
 
The county court had jurisdiction to make a determination under Commonhold and Leasehold Reform Act 2002 s168
Ms Cussens was the leaseholder of two flats in a block owned by Realread. It was alleged that the flats were used for ‘unlawful and immoral’ purposes, (ie prostitution), and that this amounted to a breach of covenant. Realread wanted to forfeit the lease and, so, in an effort to comply with Commonhold and Leasehold Reform Act 2002 s168, issued proceedings in the county court seeking a declaration that there had been a breach of covenant. Given the unchallenged evidence from two police officers and another leaseholder, the factual basis of the claim was made out and the county court granted a declaration as sought and made an order for costs. Ms Cussens appealed to the High Court arguing that there was no jurisdiction to enable the county court to make a declaration of this nature.
The appeal was dismissed. While Commonhold and Leasehold Reform Act 2002 s168 did not expressly provide that a county court could make a declaration of this sort, the county court had such jurisdiction under County Courts Act 1984 s15, ie to deal with cases about contracts. The lease was a contract and so the county court had jurisdiction. However, (a) the county court could always transfer the case to the LVT for determination; and, (b) there was a potential argument as to whether the county court, if it were to deal with such a case, should apply a limited costs power, akin to the restrictive powers of the LVT.
Pannell v City of London Brewery
[1900] 1 Ch 496
 
The failure to prove every allegation in a section 146 notice does not invalidate the notice as a whole
Re Debtors Nos 13A10 and 14A10 of 1994
[1995] 1 WLR 1127; [1996] 1 All ER 691; [1995] 41 EG 142, ChD
 
Demands for rent had not waived landlord’s right to forfeit where the demands had been made before the right to forfeit had arisen
During December 1994, the landlord of business premises wrote demanding rent arrears for September and December. The rent was not paid and the landlord obtained judgment in default for the arrears before peaceably re-entering to forfeit the lease. The tenant claimed that the landlord had, by demanding the rent, waived the right to forfeit. The landlord conceded that the demand waived the right to forfeit for the unpaid rent from September but contended that the right to forfeit for the arrears due in the current rental period had not been waived.
Rattee J accepted the landlord’s argument. The demand for rent in December had waived the landlord’s right to rely on the failure to pay rent owed from September. It had not, however, waived his right to forfeit the lease once the tenants had failed to pay December’s rent. This was because the right to forfeit did not arise until 14 days after rent fell due. Nor was there anything inconsistent in the landlord claiming and even receiving the rent concerned and seeking to forfeit the lease.
Note: there are conflicting views on whether the right to forfeit can be waived before a determination under Housing Act 1996 or Commonhold and Leasehold Reform Act 2002 is obtained on the basis that the right does not arise until a determination has been made.
Rendham Holdings Ltd v Patel
[2002] EWHC 320; [2002] All ER (D) 132 (Oct); December 2002 Legal Action 21; 10 October 2002, ChD
 
Warrant oppressive where court failed to consider application for stay of execution
A landlord of commercial and residential premises let under a long lease obtained a possession order from a district judge as a result of arrears of ground rent and management charges. The tenant lodged an appeal against the decision of the district judge as well as an application for a stay of execution. Owing to an oversight, the application for a stay of execution was not put before a circuit judge. A warrant for possession was issued and executed. The tenant applied to set aside the warrant on the basis that the circumstances in which it was issued and executed were oppressive. A circuit judge set aside the warrant for possession and granted relief from forfeiture. The claimant appealed against that decision.
Etherton J dismissed the appeal. It was likely that had the application come before the circuit judge he would have granted a stay pending the hearing of the second defendant’s appeal as it was unlikely, on a cursory appraisal, that he would have viewed the appeal as having no substance. It was the court’s failure to deal properly and promptly with the application that deprived the tenant of the opportunity to procure a stay prior to the execution of the warrant for possession. That amounted to oppression, which entitled the judge to set aside the execution of the warrant for possession.
Southern Depot Co Ltd v British Railways Board
[1990] 2 EGLR 39, ChD
 
Relief not limited to ‘exceptional circumstances’
In a case involving commercial premises, Morritt J examined the circumstances in which relief against forfeiture should be given under Law of Property Act 1925 s146. He stated that it was not limited to ‘exceptional circumstances’ and that it was permissible to have regard to the interests of a company which was not a party to the lease and which had been allowed into possession in breach of a covenant in the lease.
Van Haarlam v Kasner Charitable Trust
(1992) 64 P&CR 214; [1992] 2 EGLR 59; [1992] 36 EG 135, ChD
 
Demand for rent after knowledge of lessee’s arrest amounted to a waiver of breach
The freeholders sought to forfeit a long lease for breach of a covenant not to use premises for ‘illegal or immoral user’. The lessee was arrested for spying for Czechoslovakia and sentenced to ten years’ imprisonment. He had ‘spying equipment’ on the premises and had received secret radio transmissions there. The freeholder had, however, sent a demand for rent after the lessee’s arrest, but before his conviction. After the lessee had been imprisoned, a Law of Property Act 1925 s146 notice was sent to him at the property.
Harman J held that, in view of Law of Property Act 1925 s196, which provides that service may be effected by sending any notice to the property in question, the section 146 notice was validly served even though it did not come to the lessee’s attention. However, the demand for rent after knowledge of the lessee’s arrest amounted to a waiver of the breach of covenant. Accordingly, the lessor was not entitled to forfeit the lease.
Upper Tribunal (Lands Chamber) (formerly Lands Tribunal)
 
Cheerupmate2 Ltd v Calce
[2017] UKUT 377 (TCC), 15 September 2017
 
Rent is not payable until a valid section 166 notice is served; landlord must wait three years from service of a valid section 166 notice before forfeiting
Under a long lease, the lessee was obliged to pay the landlord £2 per year in ground rent, payable half-yearly. The lease gave the landlord the right to forfeit the lease when rent was ‘in arrear for the space of two years after the same shall have become due (whether any formal or legal demand thereof shall have been made or not)’. The landlord served a notice upon the lessee, which was intended to comply with Commonhold and Leasehold Reform Act 2002 s166, but which contained explanatory notes which had since been changed by Parliament, demanding £11 in unpaid ground rent. After the lessee failed to pay that sum, the landlord peaceably re-entered and sought to cancel the lessee’s leasehold title. After the lessee had objected to the cancellation, the First-tier Tribunal held that the lease had not been forfeited because the landlord had failed to serve a valid section 166 notice, meaning that the rent was not payable. Alternatively, Commonhold and Leasehold Reform Act 2002 s167 prohibited forfeiture where the rent had not been in arrear for a period of three years from the date of section 166 notice. The landlord appealed.
Judge Elizabeth Cooke dismissed the appeal. Although technical defects in notices should not invalidate them where their meaning remains clear (Lindsey Trading Properties Inc v Dallhold Estates (UK) Pty Ltd (1995) 70 P&CR 332), in this case, the defect was the use of wording which Parliament has specifically decided should not be used. The previous statutory wording was misleading. The section 166 notice was invalid as it did not contain the correct explanatory notes and it followed that the rent was not payable. In any event, the First-tier Tribunal had been correct to hold that a landlord could not forfeit a lease until three years had passed since rent had been demanded in a section 166 notice (s167(1)).
Forest House Estates Ltd v Al-Harthi
[2013] UKUT 0479 (LC), 26 September 2013
 
The Tribunal, when considering whether to make a determination under section 168, must consider the facts at the date it is alleged the lease was broken rather than at the date of the hearing
Forest House Estates were the freeholder owner of a block flats: Forest House. Mr Al-Harthi owned a flat within the block. Forest House sought a determination from the LVT, under Commonhold and Leasehold Reform Act 2002 s168 that Mr Al-Harthi had breached the terms of his lease by failing to ‘maintain good quality carpeting and underlay’ by installing wooden flooring in the flat. In a letter Mr Al-Harthi admitted to installing the wooden flooring. By the date of the hearing Mr Al-Harthi had fitted carpets throughout the flat. After an inspection of the flat, the LVT found that there was no evidence of a breach of the lease and declined to make a determination under section 168.
The Upper Tribunal allowed the appeal. The question was not whether, at the date of the inspection, there was evidence of the covenant being broken; rather, the question was whether Mr Al-Harthi had breached the terms of his lease. It was wholly irrelevant that he appeared to have remedied the breach by the date of the hearing.
Glass v McCready
[2009] UKUT 136; [2010] 1 P&CR DG5, 16 July 2009
 
An LVT was limited to determining whether there had been a breach of covenant; it did not have jurisdiction to refuse an application under section 168 where forfeiture was unavailable
Miss Glass sought a determination under Commonhold and Leasehold Refom Act 2002 s168 that Miss McCready had breached the terms of her lease after she had failed to keep her flat insured. Miss Glass subsequently insured the flat herself and, in accordance with the lease, required Miss McCready to pay the premium which she failed to do. The LVT held that they lacked jurisdiction because the breach concerned the failure to pay a service charge – and so section 168 did not apply – and, in any event, the amount was less than £500 so forfeiture was not available.
The Upper Tribunal allowed an appeal. The breach of covenant was not the failure to pay a service charge; it was the failure to insure the flat. Section 168 therefore applied. In any event, if it had been a service charge the Tribunal would have had jurisdiction under Housing Act 1996 s81. Moreover, the LVT’s jurisdiction was only to consider whether there had been a breach of covenant; the fact that the sum in question was less than £500, so that forfeiture was unavailable, was irrelevant to the question of whether there had been a breach of covenant.
County courts
 
Church Commissioners for England v Koyale Enterprises
[2012] L&TR 24; Central London County Court, 22 September 2011
 
A default judgment was a determination for the purposes of Housing Act 1996 s81
Koyale Enterprises was the assignee of a 99-year lease of a flat. The lease contained a covenant to pay service charges. The claimant freeholder brought a CPR Part 7 claim for unpaid service charges. No acknowledgment of service or defence was filed and, in March 2011, a default judgment was entered for £7,919.50 in respect of rent, service charges, contractual interest and contractual costs. In April 2011, the claimant began a claim for forfeiture which was listed for hearing in June 2011. District Judge Lightman dismissed the claim on the ground that, even though the landlord had obtained default judgment in respect of unpaid service charges, the amount of the service charge payable by the tenant had not been finally determined within the meaning of Housing Act 1996 s81. The Church Commissioners appealed.
HHJ Dight allowed the appeal. A default judgment is a determination for the purposes of section 81 (see Southwark LBC v Tornaritis Lambeth County Court, 11 May 1999 (HHJ Cox)).
Note: this was an undefended application and until recently the editors of Woodfall were of the contrary view. There is also conflicting county court authority on the point (see Hillbrow (Richmond) Limited v Alogaily Wandsworth County Court, 7 November 2005 (HHJ Rose)).
Surrender
 
A surrender is a voluntary agreement by both landlord and tenant that a tenancy should come to an end. A surrender should be by deed, although an oral agreement to surrender may be effective as a surrender by operation of law. One effect of a surrender is that a sub-tenant (whether the tenancy was lawfully granted or not) becomes the tenant of the head landlord: Parker v Jones [1910] 2 KB 32, KB. A sub-licensee’s interest is, however, terminated: Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465 (not appealed on this point).
Court of Appeal
 
André v Robinson
[2007] EWCA Civ 1449; 14 December 2007
 
There has to be an unambiguous act, or series of acts, to constitute surrender
Ms Robinson and two others jointly rented a first floor flat. It had one large and one small bedroom. The tenancy was a protected tenancy under the Rent Act 1977. The other two joint tenants left. Ms Robinson remained and moved into the large bedroom under a new agreement, and with a lower rent. After a while, Ms Robinson and the landlord agreed that the small room would be let to others. Two others occupied the room in succession, each paying the rent directly to the landlord. The landlord brought an action seeking possession of the small bedroom, contending that it did not form part of Ms Robinson’s tenancy. HHJ Pearl ruled that Ms Robinson held a statutory tenancy of the entire flat. The agreement whereby the rent was paid by the two successive occupiers to the landlord directly was simply a good faith agreement, not evidence that the defendant was only entitled to the large room. The landlord appealed.
The Court of Appeal dismissed the appeal. The facts did not support the landlord’s argument that there had been a surrender by Ms Robinson of the whole flat, followed by a grant of only part. There would have had to have been an unambiguous act, or series of acts, by which he had given up possession and the landlord (or his predecessor) had entered into a separate letting arrangement; this was untenable on the facts found by the judge.
Basingstoke and Deane BC v Paice
(1995) 27 HLR 433; [1995] 2 EGLR 9, CA
 
Unlawful subtenant became council’s tenant on surrender of lease
The council granted a 15-year fixed-term lease of commercial garage premises to Mr L’Heureux. Without the council’s knowledge or consent, he converted part of the garage offices into a self-contained flat and let it to Mr Paice. The council then accepted a surrender of the lease.
The Court of Appeal allowed Mr Paice’s appeal against a possession order and substituted a declaration that he was the council’s tenant and, since all the conditions of Housing Act 1985 ss79 to 81 were satisfied, that he was a secure tenant.
Belcourt Estates Ltd v Adesina
[2005] EWCA Civ 208; 18 February 2005
 
Surrender by operation of law requires unequivocal conduct by parties consistent with termination of tenancy such that inequitable for parties to dispute termination
In August 2000 Belcourt Estates let three dilapidated houses with what had been shops or businesses on the ground floor to Ms Adesina. She did not pay any rent because she decided that she did not want the premises and left in November 2000. She did not inform Belcourt of this. Belcourt did not take any action until the local authority sought payment of business rates. As a result, in January 2002 it issued proceedings against Ms Adesina. A judge found that Belcourt had not exercised its right to re-enter the premises, and that it had done nothing to collect the rent until January 2002. He held that that conduct amounted to evidence that the tenancy no longer existed and that it had been surrendered in November 2000. Accordingly no rent was due. Belcourt appealed.
The Court of Appeal allowed the appeal. Surrender of a lease by operation of law requires that the conduct of the parties has to amount unequivocally to acceptance that the tenancy has ended. There must either be relinquishment of possession and its acceptance by the landlord or other conduct consistent only with the cesser of the tenancy and the circumstances must be such as to render it inequitable for the tenant to dispute that the tenancy has ceased or such as to render it inequitable for the landlord to dispute that the tenancy has ceased. Mere inaction, or acts of omission, cannot be unequivocal conduct. In this case, although Belcourt had failed to act in taking possession or pursuing payments of rent, that conduct had not unequivocally amounted to acceptance that the tenancy had ended. Belcourt was entitled to the arrears of rent claimed.
Bolnore Properties Ltd v Cobb
(1997) 29 HLR 202; (1996) 75 P&CR 127, CA
 
Tenant vacating flat for 24 hours and handing over keys operated as surrender
The landlord brought possession proceedings against a statutory tenant, relying on arrears of rent. After the tenant had failed to comply with a suspended possession order, the landlord issued a warrant. In or about 1987, execution of the warrant was suspended on terms that the tenant would pay all arrears and agree to substitute a protected shorthold tenancy. In order to avoid the effect of Housing Act 1980 s52(2) (which prevented the creation of a protected shorthold tenancy if the tenancy was ‘granted to a person who, immediately before it was granted, was a protected or statutory tenant of that dwelling-house’) and as part of the agreement, the tenant agreed to vacate the flat for 24 hours and to hand over the keys. At first instance, the judge decided that the previous tenancy had determined. Delivery of the keys was indicative of the tenant’s intention to bring the tenancy to an end.
The Court of Appeal dismissed the tenant’s appeal. A Rent Act tenancy can be brought to an end by the creation of a new tenancy which is inconsistent with the old one. It is a question of fact and degree whether the grantee of a new tenancy is a protected or statutory tenant immediately before its grant. There is no rule of law ‘precluding a 24-hour period’ out of occupation. It was impossible to state that the parties’ actions were a device to avoid the impact of the Rent Act.
Bone v Bone
[1992] EGCS 81, CA
 
Licence not terminated merely by licensees moving out
The defendants (the parents) owned an early 19th-century farmhouse where they lived with their son (the plaintiff). The parents sold the house to the son in 1985 for £35,000, but continued to live there as licensees. The judge found that the sale was at an undervalue and that the continuing provision of living accommodation for the parents was an important part of the consideration. A year later the parents moved out. Claiming that they had abandoned their licence, the son put the house on the market for £350,000. The parents registered land charges to protect their rights of occupation and, as a result, the son sought a declaration that they had abandoned their licence. Before the hearing, the son exchanged contracts for the sale of the house for £450,000. In the High Court, it was held that the parents had not abandoned their licence and they were awarded damages of £70,000.
On appeal, it was held that, although no formalities were required for the abandonment of a contractual licence, it had not been reasonable for the son to assume that, merely by moving out, the parents had abandoned their licence. Therefore, the parents’ licence had not been determined. The Court of Appeal took into account the fact that the parents had refused to sign a deed of surrender which had been prepared by the son. The damages award was upheld.
Brent LBC v Sharma and Vyas
(1993) 25 HLR 257, CA
 
Tenant’s letter regarding transfer of tenancy operated as surrender
Mr Sharma was granted a tenancy in 1984. Later Ms Vyas came to live with him. In 1987 Mr Sharma moved out and surrendered his tenancy. The council then granted a tenancy to Ms Vyas. Mr Sharma apparently moved back into the premises with his two children. Ms Vyas wrote saying that she had no objection to the tenancy being transferred into his name. There were rent arrears of about £4,000. The council did not transfer the tenancy and did not treat Mr Sharma as a tenant. They no longer debited any rent to the account of Ms Vyas. They delivered a notice to quit addressed to Ms Vyas at the property, but it was clear that it never came to her attention and so was ineffective. HHJ Rowntree found that the letter was an unequivocal act showing that Ms Vyas wished to surrender the tenancy and that this had been accepted by the council.
The Court of Appeal dismissed Mr Sharma’s appeal. It was plain by the time that proceedings were issued that the council accepted by its conduct that the tenancy no longer existed. There was a surrender by operation of law. Stuart-Smith LJ cited with approval the following passage in Woodfall vol 1 p822, para 1-1849:
The term ‘surrender by operation of law’ or ‘implied surrender’ (there being no distinction) is the expression used to describe all those cases where the law implies a surrender from unequivocal conduct of both parties which is inconsistent with the continuance of the existing tenancy.
Camden LBC v Alexandrou
(1998) 30 HLR 534, CA
 
Surrender by operation of law where tenant sought to assign interest to other tenant
Mr Alexandrou was a secure tenant. He wrote to the council stating, ‘The above flat is no longer my responsibility as I am unable to pay for the upkeep. My wife wishes to keep the said flat and pay the rent to which I agree.’ The council treated the tenancy as having been assigned to the wife. She later gave notice to quit and the council took proceedings for possession against Mr Alexandrou on the basis that he no longer had an interest in the property. The trial judge granted possession, holding that the notice had been validly given by the wife as the sole tenant and had determined her tenancy. He further held that she had either obtained the tenancy from her husband by assignment or following a surrender by him. Mr Alexandrou sought leave to appeal on the grounds that (a) there was no assignment because there was no deed (see Crago v Julian [1992] 1 WLR 372, CA) and (b) no case for surrender had been pleaded or made out by evidence.
The Court of Appeal was satisfied that, notwithstanding the absence of a deed of either surrender or assignment, a surrender by operation of law had been made out on the evidence even though the tenant had not given vacant possession at the date of his letter or thereafter. Accordingly, the court refused an application for leave to appeal.
Chamberlain v Scalley
(1994) 26 HLR 26, CA
 
Surrender not to be implied by absence unless long absence with large arrears
The defendant was a joint tenant with a Miss Butler. In 1990 Miss Butler moved out, but left her belongings and two cats behind. The landlord argued that this was unequivocal evidence that there had been an implied surrender by operation of law. A county court judge made an order for possession and Mr Scalley appealed.
The Court of Appeal held that, for there to be an implied surrender, there had to be unequivocal conduct on the part of both the landlord and the tenant which was inconsistent with the continuance of a tenancy. A surrender was not to be implied unless there had been a long absence with large arrears of rent. The tenant’s conduct was equivocal because she had left her belongings and cats behind and so there had been no surrender. The possession order was set aside.
Climping Park Ltd v Barritt
(1989) Independent 15 May, CA
 
Where parties enter into new agreement old agreement surrendered
When an existing tenancy between the same parties is replaced by a new agreement which operates as a surrender of the old tenancy by the tenant and a re-grant by the landlord, the latter is good consideration for the surrender by the tenant and all new obligations which the tenant takes on.
Foster v Robinson
[1951] 1 KB 149; [1950] 2 All ER 342, CA
 
Agreement that retired farm worker need no longer pay rent operated as surrender; son estopped from claiming tenancy still existed
A cottage was occupied by a farm worker who paid a yearly rent of £6 10s (£6.50). When, as a result of age and infirmity, he stopped working, his landlord and former employer agreed that he need not pay any further rent but could live in the cottage for the rest of his life.
The Court of Appeal held that this agreement was an effective surrender by operation of law and that the former tenant’s son was estopped from claiming that the old tenancy still existed. The Court of Appeal approved the following passage in Foa’s General Law of Landlord and Tenant:
It has been laid down that in order to constitute a surrender by operation of law there must be, first, an act of purported surrender invalid per se by reason of non-compliance with statutory or other formalities, and secondly, some change of circumstances supervening on, or arising from, the purported surrender, which, by reason of the doctrine of estoppel or part performance, makes it inequitable and fraudulent for any of the parties to rely upon the invalidity of the purported surrender.
Hackney LBC v Snowden
(2001) 33 HLR 554; [2001] L&TR 60, CA
Hackney LBC v Snowden
 
Open to landlord and tenant to agree to treat NTQ as valid and thereby waive the requirement of four weeks’ notice
Laine v Cadwallader
(2001) 33 HLR 397; [2001] L&TR 77, CA
 
Return of keys an offer of surrender, not a surrender
The claimant granted the defendants an assured shorthold tenancy for a term of six months from 19 January 1998. The tenants held over at the end of the fixed term and became statutory periodic tenants. On 10 September 1998 they left and put the keys through the landlord’s letter box. The landlord sued, among other things, for four weeks’ rent in lieu of notice.
Her claim was dismissed in the county court, but allowed in the Court of Appeal. Under Protection from Eviction Act 1977 s5 any notice to quit by a tenant is invalid unless it is given not less than four weeks before the date on which it is due to take effect. The dropping off of the keys was not a surrender, but an offer to surrender. There was no express acceptance of the offer. The landlord had agreed to terminate the tenancy at the end of the minimum period for which a proper notice could have been given. The landlord was accordingly entitled to recover the rent for that four-week period.
Leek and Moorlands Building Society v Clark
[1952] 2 QB 788; [1952] 2 All ER 492, CA
 
One of two joint tenants cannot surrender a joint tenancy
Unless there is express agreement, one of two joint tenants cannot validly surrender a joint tenancy.
Mattey Securities Ltd v Ervin
[1998] 34 EG 91, CA
 
Payment of rent by non-tenant did not amount to surrender and re-grant to payer
In a case involving commercial premises, the court considered the circumstances in which a surrender by operation of law may occur. Bracewell J said:
The conduct of the parties must unequivocally amount to an acceptance that the tenancy is ended for the doctrine to apply. Although a surrender by operation of law does not require that there is an intention of the parties to surrender the lease, it does however require that there is some unequivocal act which has the effect of estopping the parties from asserting that the lease is still extant.
Payment of rent by a company other than the tenant which had entered into occupation did not operate as a surrender by operation of law and re-grant to the company which was paying the rent.
Preston BC v Fairclough
(1983) 8 HLR 70, CA
 
For landlord to establish surrender; tenant leaving premises owing rent insufficient
The tenants of a council house allowed Mrs Fairclough to move in with them. Later the tenants left, leaving Mrs Fairclough in occupation. The council, without taking any steps to terminate the tenants’ tenancy (such as serving a notice to quit), brought possession proceedings under County Court Rules Ord 24 (summary proceedure for possession). A county court judge held that the tenancy had been terminated by operation of law and made a possession order.
Mrs Fairclough’s appeal was allowed. They authority had not evidenced that there had been a surrender. The bare fact that a tenant leaves premises at a time when he owes rent is insufficient to enable a court to draw the inference that there has been a surrender.
Proudreed Ltd v Microgen Holdings plc
[1996] 1 EGLR 89; [1996] 12 EG 127, CA
 
No surrender by return of keys
Although the return of keys by a tenant to a landlord may amount to a surrender, this is not so if there is no other evidence that the landlord intends to resume possession. In this case, the landlord held the keys for six days before returning them to the tenant’s receiver.
The Court of Appeal held that on these particular facts there had been no surrender.
R v Croydon LBC ex p Toth
(1988) 20 HLR 576, CA
R v Croydon LBC ex p Toth
 
Tenancy surrendered where tenant left premises taking all belongings; facts at time landlord accepted surrender relevant; later assertion by tenant that did not intend to leave permanently irrelevant
Sable v QFS Scaffolding Limited
[2010] EWCA Civ 682; [2010] L & TR 30; [2010] NPC 70; (2010) Times, July 20, 17 June 2010
 
Morgan J summarized a number of principles applying to surrender by oper-ation of law
In a case in which it was claimed that there had been a surrender of the tenancy of a builder’s yard by operation of law, Morgan J extracted a number of propositions from Woodfall:
•There is no legal distinction between a surrender by operation of law and an implied surrender.
•The term surrender by operation of law is applied to cases where a landlord or a tenant has been a party to some act, the validity of which he is afterwards estopped from disputing, and which would not be valid if the tenancy had continued to exist.
•The principle does not depend on the subjective intentions of the parties but on estoppel.
•In this context, there is no estoppel by mere verbal agreement; there must in addition be some act which is inconsistent with the continuance of the tenancy.
•In point of time, the surrender is treated as having taken place immediately before the act to which the landlord or the tenant is a party.
•The conduct of the parties must unequivocally amount to an acceptance that the tenancy has ended; there must be either a relinquishment of possession and its acceptance by the landlord, or other conduct consistent only with the cesser of the tenancy.
•It has been said that the circumstances must be such as to render it inequitable for the landlord or the tenant to dispute that the tenancy has ended.
•An agreement by the landlord and the tenant that the tenancy shall be put an end to, acted on by the tenant’s quitting the premises and the landlord by some unequivocal act taking possession, amounts to a surrender by operation of law; the giving and taking of possession must be unequivocal.
•Where the tenant requests the landlord to let the property to a third party, and the landlord does so, the lease is surrendered at the time of the new letting; the surrender does not take place before the time of the new letting; it is essential that the new letting is effected with the consent of the original tenant; if the original tenant does not consent or know of the new tenancy, there is no surrender; the original tenant’s consent may be inferred from conduct or from long acquiescence in the new arrangement.
•A surrender by operation of law may take place where the landlord, with the original tenant’s consent, accepts a new tenant as his direct tenant; the consent of the landlord and the original tenant is needed.
Morgan J also stated that the requirement that the conduct of the parties must be inconsistent with the continuation of the lease has been described as ‘a high threshold’.
Sanctuary Housing Association v Baker
(1998) 30 HLR 809; [1998] 1 EGLR 42; [1998] 09 EG 150, CA
Sanctuary Housing Association v Baker
 
Assignment effective despite consent to assign having been obtained by fraud; fraud nullified consent; no implied surrender
Sanctuary Housing Association v Campbell
[1999] 1 WLR 1279; [1999] 3 All ER 460; (2000) 32 HLR 100; [1999] 18 EG 162; (1999) Times 1 April, CA
 
Where tenant left premises and rehoused herself actions unequivocal; Matrimonial Homes Act 1983 did not restrict tenant’s rights to terminate tenancy
The plaintiff housing association granted Ms Shaw a secure weekly tenancy of a dwelling. She occupied the house with her children and her co-habitee, Mr Campbell. Later she married Mr Campbell, but then left the house as a result of domestic violence and purported to surrender possession. However, Mr Campbell remained in the house and refused to leave. The housing association began proceedings to gain possession of the house. In his defence, Mr Campbell relied on rights conferred on him by Matrimonial Homes Act 1983. An assistant recorder decided that the tenancy had been expressly surrendered.
Mr Campbell appealed unsuccessfully. On appeal it was conceded that any surrender could only have been by operation of law. The Court of Appeal held that there had been a surrender by operation of law. After rehousing herself, Ms Shaw had done all that she could to comply with the housing association’s stipulation that she should vacate the premises and return the keys. Her conduct was unequivocal. The court distinguished Hoggett v Hoggett (1980) 39 P&CR 121, CA. Furthermore, there is nothing in Matrimonial Homes Act 1983 s1 which restricts a tenant’s right to terminate her contractual relationship with the landlord. Nothing in s1 gave Mr Campbell indefinite rights of occupation of the former matrimonial home which were only terminable by an order under s1(2)(a) or otherwise within the court’s jurisdiction derived from the suit. The section was plainly intended to regulate the rights of spouses between themselves.
Tweedie v Souglides
[2012] EWCA Civ 1546; [2013] CL 373; [2013] P & CR 15, 4 December 2012
 
A deed of variation which extends the extent of the demise operates as a surrender and re-grant
A deed of variation, which added additional land to a demise, amounted to a surrender of the original lease Mr and Mrs Souglides held the sublease of a flat. They entered into a deed of variation with their landlord to extend the premises let by the sublease to include a roof terrace. Later, an issue arose as to whether, after the deed of variation, the couple held the same legal interest in the flat as they had done before. Newey J decided that they did.
The Court of Appeal allowed an appeal by the freeholders, It held that the deed of variation operated by way of surrender and re-grant because it is not possible to vary an original lease by adding additional land to the demised premises. The couple therefore held under a new lease pursuant to that re-grant even if otherwise on the same terms as the previous lease.
Zionmor v Islington LBC
(1998) 30 HLR 822; March 1998 Legal Action 10, CA
 
Tenant leaving note to other tenants that he was leaving did not amount to offer of surrender to landlord
In 1992 the council let the plaintiff a flat on a secure tenancy. In October 1995, the tenant gave notice of the right to buy. This was admitted by the council. Before completion the tenant left the flat, leaving behind a friend. When he left, he put up a notice in the common parts indicating that because graffiti had been written on the walls of his flat, his windows smashed and his door locks broken, he would no longer be residing at the property. Later he explained that the note was intended to make those who had been harassing him think that he had left the property for good. The council was informed of the note by other tenants and the council’s caretaker could not find the tenant. The council decided that the flat had been abandoned and changed the locks to the front door. The tenant sought orders readmitting him to the property and restraining the landlord’s further interference with it. The council claimed that the departure of the tenant amounted to a surrender and thereby determination of the tenancy. The county court judge rejected the council’s defence and held that the tenancy had not been determined.
The council’s appeal was dismissed by the Court of Appeal. The court held that the county court judge had properly directed himself that the question was whether the acts of the tenant amounted to an implied offer of surrender of the tenancy. If the acts could not amount to such an implied offer of surrender, then there was no offer for the landlords to accept. The Court of Appeal agreed with the judge that, as the tenant had left a friend in possession together with at least some of his belongings, no inference could properly be drawn that he had intended to give up the tenancy. The council could not place reliance on the notice affixed to the notice-board because it was not directed to the landlord and did not suggest that the tenant was giving up possession in any legal or technical sense so as to surrender the tenancy. There had been no unequivocal relinquishment of possession and no implied offer of surrender.
High Court
 
Coker v London Rent Assessment Panel
[2006] EWHC 2367 (Admin), 19 May 2006
 
Variation to terms of tenancy did not amount to surrender of tenancy and re-grant
Mr Coker was the tenant of a flat. For many years there were substantial disputes between him and his landlord. In October 2004 these were settled by a Tomlin order which had the effect of varying the rent, rendering insurance rent non-payable, modifying the covenant against alterations and changing the contract from a business tenancy to an assured tenancy. The rent payable was £950 per month. Later the landlord served a notice of increase of rent under Housing Act 1988 s13. Mr Coker referred the notice to the rent assessment panel (RAP), arguing that it was invalid because the Tomlin order amounted to the surrender of the old tenancy and grant of a new tenancy. The RAP rejected that argument on the basis that the amendments created by the order could not amount to a new tenancy as they were not sufficiently substantial. The RAP inspected the flat and concluded that £1,120 per month was the rent for which the flat could reasonably be expected to be let on the open market in accordance with s14. Mr Coker appealed against that decision.
James Goudie QC, sitting as a Deputy High Court Judge, dismissed the appeal. The Tomlin order had not resulted in any increase in the premises demised or in the length of term. The absence of both features did not mean that there could never be a surrender, but that there would only exceptionally be one. At the date of the Tomlin order, it was common ground that Mr Coker had an assured tenancy and not a business tenancy. The only variations to the tenancy agreement (ie, agreement by the landlord not to enforce the insurance rent and a modification to the covenant against alterations) ‘came nowhere near, individually or cumulatively, to being sufficient to imply a surrender and re-grant’.
Padwick Properties Ltd v Punj Lloyd Ltd
[2016] EWHC 502 (Ch); [2016] L&TR 18, 9 March 2016
A landlord’s decision to change the locks of a property, not to return the keys and to market the property with vacant possession did not amount to unequivocal conduct that was inconsistent with the tenancy continuing
In the context of a business lease, the tenant’s guarantor defended a claim for unpaid rent arrears accrued by a company that had been placed in administration on the basis that the tenancy had been surrendered by operation of law when the former tenant’s administrators had returned the keys to the landlord and the landlord had, in reliance of this conduct, changed the locks, employed other measures to secure the property and marketed the property to be re-let with vacant possession
The guarantor’s defence failed. A tenant cannot effect a surrender simply by vacating the premises and returning the keys to the landlord. Nor could the landlord’s actions be said to be inconsistent with the continuation of the tenancy. The locks were not changed for the purpose of excluding the tenant or for enabling the landlord to enter into the property for its own beneficial use. Moreover, the marketing of the property was not of itself inconsistent with the continuation of the tenancy. The position would have been different had the landlord actually re-let the property, but it never had.
CHAPTER H
Previous Next