The tenant (CEM) fell into financial difficulties. In breach of covenant the premises were occupied by a related company (Unibol) which started paying the rent. The landlord (Fortwilliam) accepted the rent for nearly two years after having been put on notice of Unibol’s occupation and payment of the rent. During this period there were negotiations over an assignment of the lease which failed.
Held: The conduct of the landlord in failing to take action to enforce the covenants in the lease when it became clear to it that Unibol had taken possession of the premises and was paying the rent amounted to forbearance: ‘What occurred here, as a result of Fortwilliam’s failure to take any steps to enforce the covenant, was that Fortwilliam may have become estopped by waiver from forfeiting the lease as a result of that breach. By contrast with the circumstances of the Howard de Walden and Selous cases and of Holme v Brunskill, Fortwilliam did not take the initiative to vary the terms of the lease. There was no agreement between Fortwilliam and Holdings on behalf of CEM to vary its terms, simply an acceptance of payment of the rent coming due under the lease by another company in the same group as Holdings and CEM pending negotiations to assign the lease to that company which situation was allowed to continue after those negotiations had broken down.’
The Hon Mr Justice Evans-Lombe
 EWHC 979 (Ch)
England and Wales
Cited – Topland Portfolio No 1 Ltd v Smiths News Trading Ltd CA 21-Jan-2014
The claimant landlord sought to recover arrears of its tenant’s rent after the tenant’s insolvency from the defendant under the defendant’s guarantee of the rent. The defendant had argued successfully at first instance that the guarantee had been . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant, Company
Updated: 04 June 2022; Ref: scu.196620