References: [1972] 1 WLR 1048, [1972] EWCA Civ 4, (1972) 24 P and CR 103, [1972] 3 All ER 610
Links: Bailii
Coram: Buckley LJ
Ratio: 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.
Statutes: Law of Property Act 1925 146
Jurisdiction: England and Wales
This case cites:
- Cited – Rugby School (Governors) v Tannahill CA ([1935] 1 KB 87)
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] 1 QB 48)
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] 1 QB 887, [1963] 1 All ER 500)
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] 1 Ch 764)
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 . .
(This list may be incomplete)
This case is 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 ([2003] EWHC 2713 (Ch), Bailii)
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 (Gazette 21-Apr-99, Times 01-Apr-99, Bailii, [1999] EWCA Civ 1027, [2000] Ch 12, [1999] 2 All ER 791)
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 (Bailii, [2004] EWCA Civ 100, Times 20-Feb-04, Gazette 18-Mar-04, [2004] 2 All ER 665, [2004] Ch 296, [2004] L and TR 34, [2004] 2 WLR 1331, [2004] 2 EGLR 55, [2004] 18 EG 102)
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 (Bailii, [2009] EWCA Civ 31, Times 18-Feb-09)
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 (Bailii, [2010] EWCA Civ 1211, [2011] L and TR 6, [2011] 1 P and CR DG7)
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 . .
(This list may be incomplete)
Last Update: 30 November 2018
Ref: 187989
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