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A B C D E F G H I J K L M N O P R S T V W Y

Protecting tenants against forfeiture for breaches of repairing covenants

Protecting tenants against forfeiture for breaches of repairing covenants

Thursday 3rd December 2015

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Where a landlord seeks damages or forfeiture of a tenant’s lease for a tenant’s failure to keep property in repair pursuant to the lease, it is important that tenants avail themselves of the protections available for tenants under the Leasehold Property (Repairs) Act (“the Act”).

The Act can be used as a safeguard by tenants to prevent a landlord from forfeiting a tenant’s lease or claiming damages from the tenant without an Order of the Court. While the protection is available for leases of 7+ years which are not in the final three years, it does not apply automatically. In order for the protection to be effective, after receiving notice of breaches from the landlord, the tenant must within 28 days serve a ‘Counter-notice’ on the landlord claiming protection under the Act.

The effect of the Counter-notice is that a Court must decide whether a landlord can be permitted to seek damages or forfeiture. The Court will need to be convinced that damages or forfeiture would be fair in all of the circumstances. The most important yardstick by which this can be measured is whether the value of the landlord’s interest in the property has or will suffer as a result of the alleged breaches. In effect, the question is whether the landlord is justifiably trying protect its interest in the property or, instead, whether the landlord could be seeking to gain re-entry to the property perhaps under the pretence of disrepair.

For example, consider a scenario in which a landlord of a long lease alleges that the tenant has failed to keep the property in adequate repair and seeks to forfeit the lease. A tenant which serves a Counter-notice under the Act will force the landlord to prove to the Court that it should be permitted to take back the property from the tenant. With long-leases of significant capital value, the Act ensures that landlords will face an arduous uphill struggle to bring about forfeiture. 

If you would like more information about any of the issues raised in this article, please contact either:


Jeff Lewis
Head of Litigation, Manchester
Tel: 0161 836 8872
Email: jeff.lewis@brabners.com
 

 


Martin Bloor
Trainee Solicitor
Tel: 0161 836 8827
Email: martin.bloor@brabners.com