The rent under the lease was payable in advance on the usual quarter days and the landlord forfeited the lease by serving a writ ‘for instance on 25 April’.
Held: At common law on the breach of a covenant by a lessee, a lessor is entitled to re-enter or determine the lease, and the service of the writ by the lessor on the lessee brought the demise to an end. A lessor who serves a lessee with process for recovery for possession is entitled to mesne profits for the period during which the lessee remains in possession after service.
Lord Denning MR said: ‘where a tenant has been guilty of a breach which has not been waived, then, in order to effect a forfeiture, the lessor must actually re-enter, or do what is equivalent to re-entry, namely issue and serve a writ for possession on the lessee or assignee, as the case may be . . The lease is determined as from the date on which the writ is served. The rent is payable up to the date of service. Mesne profits are payable after the date of service.’ and
‘If the rent is payable in advance, the writ should claim for the whole quarter’s rent due in advance on March 25, 1968: Ellis v Rowbotham [1900] 1 Q.B. 740; and mesne profits from June 24, 1968, to the date of delivery of possession. If the rent is payable in arrear the writ should claim the last quarter’s rent due (for example, on March 25, 1968), and then there should be a claim in words for ‘rent at the rate of . . from March 25, 1968, to the date of service of the writ and mesne profits at the rate of . . from the date of service of the writ till the date of delivery of possession.’
Judges:
Lord Denning MR
Citations:
[1970] 2 All ER 795, [1970] 2 QB 433, [1970] 2 WLR 1133
Jurisdiction:
England and Wales
Citing:
Cited – Ellis v Rowbotham CA 1900
The plaintiff had let and the defendant had taken a tenancy of premises at a rent payable quarterly in advance. The tenancy agreement had provided that if rent should be in arrears for 14 days the plaintiff could regain possession by re-entry. A . .
Cited by:
Cited – Associated Deliveries Ltd v Harrison CA 1984
A landlord, having forfeited the lease could not recover for damage to the property caused by third parties before possession was finally given. The election to forfeit was unequivocal, and damages were irrecoverable from the date of service of the . .
Cited – Knowsley Housing Trust v White; Honeygan-Green v London Borough of Islington; Porter v Shepherds Bush Housing Association HL 10-Dec-2008
The House considered situations where a secure or assured tenancy had been made subject to a suspended possession order and where despite the tenant failing to comply with the conditions, he had been allowed to continue in occupation.
Held: . .
Cited – Quirkco Investments Ltd v Aspray Transport Ltd ChD 23-Nov-2011
The defendant tenant said that it had exercised a break clause in the lease held of the claimant. The claimant said the break notice was ineffective because the defendant was in breach of the lease, not having paid an iinsurance service charge, and . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 13 May 2022; Ref: scu.194932
