Relief from forfeiture was available against a landlord who had peaceably re-entered property subject to a tenancy without a court order. Such a landlord was still ‘proceeding’ to enforce his rights of forfeiture until he obtained a judgment for possession.
Lord Templeman described as the ‘dubious and dangerous’ the method of enforcing a right of forfeiture by re-entry without due process of law:
(a) A tenant should not be at risk of returning home to discover that, unbeknown to him, he and his family have been locked out and are homeless. If they are to be evicted, the eviction should be conducted in an orderly fashion, upon at least some prior notice, by officers subject to court direction.
(b) If there is to be an issue as to whether the landlord is entitled to forfeiture under the terms of the tenancy, it is preferable, particularly in relation to a home, for the court to determine it in advance of eviction rather than in proceedings brought by the tenant for an injunction and damages in the wake of it or in criminal proceedings against the landlord under s.1 of the Act of 1977.
(c) If there is to be an issue as to whether the tenant is entitled to relief against forfeiture pursuant to s.146(2) of the Act of 1925, it is, again, preferable, particularly in relation to a home, for the court to determine it in advance of eviction rather than in its wake.
Lord Templeman said that it was wrong to award costs on the indemnity basis against a tenant who failed in his application for relief against forfeiture. He also deprecated the imposition of a term for obtaining relief as to the payment of indemnity costs, as a general practice. He said: ‘But it seems to me that in principle a tenant should not be at the mercy of an order made by a judge who has no means of knowing the effect of the order and imposes no impartial criterion by which costs can be taxed down.’
Lord Keith of Kinkel, Lord Templeman, Lord Oliver of Aylmerton, Lord Goff of Chieveley, Lord Jauncey of Tullichettle
Gazette 22-Jan-1992, [1992] 1 AC 494, [1992] 2 WLR 15, [1991] UKHL 7, [1991] 3 WLR 264
Bailii
Law of Property Act 1925 146(1)(2)
Citing:
Appeal from – Billson and Others v Residential Tenancies Ltd CA 11-Feb-1991
As to the exercise of relief in equity outside the limitation period: ‘This is not to say that courts of equity should now grant relief without any regard to the statutory provisions. Equity follows the law, but not slavishly nor always: see Cardozo . .
Cited by:
Cited – Vision Golf Ltd v Weightmans (A Firm) ChD 26-Jul-2005
A lease had been forfeited. The defendant firm of solicitors had negligently failed to apply for relief. They argued that that failure had in fact caused no loss to the claimants, since they would have lost the lease anyway.
Held: The ‘but . .
Cited – Pirabakaran v Patel and Another CA 26-May-2006
The landlord had wanted possession. The tenant said that the landlord had been harassing him. The landlord said that the tenancy was a mixed residential and business tenancy and that the 1977 Act did not apply.
Held: The 1977 Act applied. A . .
Cited – Patel and Another v K and J Restaurants Ltd and Another CA 28-Oct-2010
The landlord appealed against refusal of forfeiture for breaches of the lease. A covenant provided against use for immoral purposes, and the sub-tenant had been found to be running a brothel. The tenant said that he had been concerned of an action . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.78405