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 which the rent formed only a smaller part. L could only pay the cheque in, and that was not as the judge had found, acceptance of rent as rent so as to be waiver of the breach.
‘As a matter of law the right to forfeit may be waived by acceptance of rent by the landlord with knowledge of the breach, even though the landlord had no intention to waive. The test is an objective one: did the landlord so act as to recognise the continued existence of the Lease and the continuing relationship of landlord and tenant? Thus the landlord’s acceptance of rent as the result of an error, or on a ‘without prejudice’ basis may indicate that the landlord had no intention to waive, but such circumstances do not, as a matter of law, prevent waiver.’
Mummery LJ, Rix LJ, Smith LJ
[2009] 2 P and CR 2, [2008] 47 EG 112, [2009] 9 EG 194, [2009] 1 P and CR DG7, [2008] EWCA Civ 1282, [2009] 1 EGLR 32, [2009] L and TR 16, [2008] NPC 127
England and Wales
CitedMatthews v Smallwood 1910
A landlord cannot prevent accepting a payment of rent from operating as a waiver of breach merely by stating at the time of payment that he accepts it without prejudice to his right to forfeit.
Parker J said: ‘It is also, I think, reasonably . .
CitedCentral Estates (Belgravia) Ltd v Woolgar (No 2) CA 20-Jun-1972
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 . .
CitedJohn 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 . .
CitedOak Property Company Limited v Chapman CA 1947
Somervell LJ said (in a judgment of the court of appeal prepared by Evershed LJ) that ‘acceptance of any rent accrued due after the landlord’s knowledge of the tenant’s breach was regarded necessarily as inconsistent with an election to avoid the . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2021; Ref: scu.278211