Right to forfeit waived by rent demand
The landlords’ managing agents learned that the tenant had been convicted of keeping a brothel at the premises and served a section 146 notice intending to forfeit the tenancy. He told his staff and instructed them not to demand or accept rent. But one clerk did demand the rent and subsequently gave a receipt for it.
Held: Although the tenant knew, when he paid the rent, that the landlords’ intention to forfeit remained unchanged, their right to do so had been waived. Even an acceptance of rent which is expressly ‘without prejudice’ will effect a waiver. The court considered the effects of acts of a landlord at a time when it had the right to elect to forfeit the Lease or affirm it, unequivocally demonstrating the decision to affirm it. It had irrevocably waived the right to forfeit the Lease. If a landlord, knowing of a tenant’s breach of covenant, demands rent (even through a clerical error) he cannot avoid the consequences even by an express reservation of his rights.
Buckley LJ, Lord Denning MR
[1972] 1 WLR 1048, [1972] EWCA Civ 4, (1972) 24 P and CR 103, [1972] 3 All ER 610
Bailii
Law of Property Act 1925 146
England and Wales
Citing:
Cited – Rugby School (Governors) v Tannahill CA 1935
The tenant had been convicted of permitting the premises in Great Ormond Street to be used for habitual prostitution. The landlord served a notice under section 146 which did not provide for the possibility of the breach being remedied. The evidence . .
See Also – Central Estates (Belgravia) Ltd v Woolgar CA 1972
A lessee made a claim to acquire the freehold of his house under the 1967 Act. The making of such a claim prevented the landlord from forfeiting the lease unless lessee had not made his claim in good faith.
Lord Denning MR said: ‘To my mind, . .
Cited – Segal Securities Limited v Thoseby QBD 1963
To demand rent may waive a right to forfeiture. Sachs J said: ‘When one looks at the authorities, it is, however, clear that a demand can operate as a waiver in the same way as an acceptance.’ Also the landlord’s own behaviour can be taken into . .
Cited – London and County (A and D) Ltd v Wilfred Sportsman Ltd CA 1971
There is no reason of principle why a right of forfeiture arising from a failure to pay rent, cannot be waived in exactly the same way as a right of forfeiture arising from a breach of any other covenant in the Lease.
Russell LJ said: ‘The . .
Cited by:
Cited – First Penthouse Limited/Channel Hotels and Properties (UK) Limited v Channel Hotels and Properties (UK) Limited/Fahad Al Tamimi First Penthouse Limited Varlet International Limited Ruth Gary Orbach Quallvile Limited Norval Holdings Limited ChD 14-Nov-2003
Several transactions had taken place with regard to a lease of a roof void, which was to be developed for penthouses. The lease had been charged to secure funding. The development did not proceed to schedule, and a s146 notice was served. It was . .
Cited – Oliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
Cited – Shaws (EAL) Ltd v Pennycook CA 2-Feb-2004
Tenant’s First Notice to terminate, stood
The landlord served a notice to terminate the business lease. The tenant first served a notice to say that it would not seek a new lease, but then, and still within the time limit, it served a second counter-notice seeking a new tenancy. The . .
Cited – Ugiagbe v London Borough of Southwark CA 10-Feb-2009
The claimant said that the defendant had acted unlawfully in finding her to homeless intentionally. Her landlord had said that she was to leave. She sought housing but did not at first follow the homelessness procedure. She left the house though . .
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 . .
Cited – John Lewis Properties PLC v Viscount Chelsea ChD 1993
Three Leases of the Peter Jones site to T’s predecessor in 1934 contained covenants by T to redevelop the site in two phases, the second of which related to the MackMurdo and Simon’s Street buildings and was to be completed by December 25 1987. In . .
Cited – Osibanjo and Another v Seahive Investments Ltd CA 21-Nov-2008
Appeal against refusal of relief from forfeiture of lease – appeal based on assertion of waiver by acceptance of rent knowing of the breach.
Held: The appeal was refused. The acceptance of rent was through payment in of a cheque for a sum of . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2021; Ref: scu.187989