Forfeiture of Lease Solicitors

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Whether you are a landlord or a tenant, our forfeiture solicitors in London, Birmingham and Northampton will be happy to advise you. We have made a name for ourselves as one of the UK’s leading law firms and have even been recognised by the Legal 500. We excel at providing specialist advice on lease forfeiture and possession. Give our team a call today.

What is Forfeiture of Commercial Lease?

Also known as a right of re-entry, forfeiture of a lease refers to a landlord’s right to bring the lease to an end to regain possession of the property without compensating the tenant after an irremediable breach. However, it is important that it is used in the correct circumstances. After all, an unlawful forfeiture could result in the tenant bringing a damages claim against the landlord. To determine whether forfeiture is the right remedy, it is wise to seek legal advice.

The Forfeiture Process

To forfeit a lease, the lease must contain an express clause that covers the alleged breach and provides the right to forfeit. If the tenant has fallen into arrears of rent, the landlord usually has the right to forfeit the lease without giving the tenant any notice. Although, it is worth noting that the rent will need to be outstanding for a certain period of time.

For other breaches, such as failing to maintain or repair the property as specified in the lease, the landlord will need to serve a Section 146 Notice. This will detail the specific breach, as well as the landlord’s intention to forfeit the lease. It will also give the tenant reasonable time to rectify the breach before the landlord forfeits the lease.

In some cases, landlords can peaceably re-enter the premises without litigation. Usually, the landlord will be accompanied by bailiffs and a locksmith to swiftly regain possession. However, this option can be quite risky. To be on the safe side, it is advisable to apply to the courts for an order granting forfeiture.

When Can a Landlord Legally Exercise Their Right of Forfeiture and Possession?

Before forfeiting, it is important to understand what breaches are irremediable. Equally, it is important that these covenants are included in the lease agreement to ensure that the tenant is obliged to act in a certain way.

A landlord can exercise their right to forfeit the lease if:

• The leaseholder has made unauthorised alterations to the premises
• The leaseholder has fallen into arrears of rent or has outstanding service charges or other monies due
• The leaseholder has failed to maintain the upkeep of the premises
• The leaseholder is underletting the premises without the landlord’s consent
• The leaseholder is using the premises for immoral purposes
• The leaseholder has breached the terms of the lease agreement, e.g. antisocial behaviour
• There has been a change in the permitted use of the property

For all remediable breaches, except for non-payment of rent, the landlord needs to serve a Section 146 Notice. The notice must explain the nature of the breach, what remedial action the tenant should take, as well as the landlord’s entitlement to damages for the breach.

Landlords need to make sure that tenants have been afforded reasonable time to remedy the breach where possible. In some cases, the court may award the tenant a relief period before forfeiture, even if the breach is irremediable.

Commercial and Residential Property

With commercial leases, landlords have the right to either peaceably re-enter the premises or apply for an order granting forfeiture once reasonable time for the tenant to rectify the breach has passed.

Generally, peaceable re-entry is the most cost-effective solution where the landlord changes the locks and leaves physical notice that the lease has ended on that date. However, the landlord needs to ensure that there is no one or any property remaining on the premises. If there is someone present who objects to the claim, it is against the law for landlords to enter the property and change the locks. If the leaseholder has left moveable property on the premises, the landlord may be legally liable for its safekeeping until the tenant can recover it.

Similarly, with residential leases, the landlord does not have the right to peaceably re-enter the premises unless it is evident that the tenant has left the premises and does not intend to return. Our experienced forfeiture solicitors always advise landlords to recover the possession of residential property through litigation. After all, entering the property without a court order could put you at risk of facing trespassing claims.

Pitfalls To Avoid

While some leases may have a clause allowing the landlord to re-enter the premises if there is a breach of the lease, it is easy to get this procedure wrong. If use or threats of violence are made against the tenant or the property itself, the landlord will have committed an offence under the Criminal Law Act 1977. That is why it is advisable to pursue litigation and make a claim for forfeiture and possession.

Plus, if the landlord treats the lease as continuing, they may have waived their right to forfeit the lease, even if the leaseholder has breached the term of the lease. For example, if the landlord continues to demand or accept rent after the breach of the lease has occurred, they may have waived their right. Our specialist forfeiture solicitors can help you determine whether you have waived your rights before taking steps to regain possession of the property.

Defending a Claim

We can also advise tenants on how to defend a forfeiture claim and help them determine whether their landlord has waived their right to make a claim. In such cases, our legal professionals can apply for a declaration that the forfeiture was unlawful or even seek relief from forfeiture on your behalf.

To grant relief of forfeiture, the court will look at whether it will put the landlord and tenant in the position they would have been in if the lease had not been terminated. In cases where relief is granted, the lease will usually be reinstated as if no claim had been made.

If the reason for forfeiting the lease was due to the non-payment of rent, the tenant will be required to pay the outstanding rent to receive relief from forfeiture. For other breaches, the tenant will need to remedy the breach or pay reasonable compensation for the breach if it cannot be remedied.

How We Can Help

Wrongful forfeiture can have serious consequences for landlords so it is crucial to seek legal advice before making a claim. Our highly trained forfeiture of lease solicitors excel at:

• Reviewing leases
• Advising on the right to claim forfeiture of lease
• Drafting and serving Section 146 Notices
• Instructing third parties to peaceably re-enter premises
• Representing landlords in court
• Defending applications for relief from forfeiture

If you are a tenant, we can help by:

• Determining whether a landlord has waived their right to forfeit the lease
• Advising on the validity of a Section 146 Notice
• Responding to forfeiture proceedings
• Advising on wrongful forfeiture
• Applying for relief from forfeiture
• Making applications to reinstate leases

Why Choose Witan?

• We have been ranked by the Legal 500 as one of the top law firms in the UK
• We have over 100+ years of combined legal experience
• We specialise in resolving commercial property disputes
• Our forfeiture solicitors in London, Birmingham and Northampton are commercially minded and provide the very best legal advice
• We have a strong record of success working with high-profile clients and always find the best legal solution for each case