EOMA

1.
Issues regarding Reggie’s lease.

Reggie signed a lease with the freeholder (Tina) for 100 years in 1990. Reggie assigned his
lease to Paula which means Reggie transferred the remaining interest in the property to
another. Subsequently, Paula has stopped paying rent to Tina.

In order to advise Reggie, the following issues will be addressed:

a. Is Reggie liable to Tina for Paula’s unpaid rent?

b. Are there any exceptions available to Reggie?
c. If Reggie pay’s Paula’s rent, is there scope to reclaim damages from Paula?

There can also be consideration given to whether Tina has fulfilled statutory obligations to
give notice to Reggie, and whether the rent amount is consistent with the original contract
between Reggie and Tina.

Rule

All leases granted before 1 January 1996 bear the original contractual liability for the full
duration of the lease, even after the lease has been assigned to someone else1. This rule is
rooted in contract law, where contractual liability remains fixed upon the original parties for
the express period of the contract2. This regime became widely criticised in its scope for
injustice and unfairness3. Afterall, a small business owner could close-up and retire, and
many years later rudely find themselves liable for large sums of unpaid rent. This was
corrected in the Landlord and Tenant (Covenants) Act 19954, however leases granted before
1 January 1996 are not affected.

A tenant is liable for continuing covenants provided the two tests are satisfied:

1. There is privity of estate: ‘Privity of estate’ allows a party to enjoy a leasehold, whilst not
requiring a contractual relationship5. S.141 of the LPA 1925 extended the rule to

1
Chris Bevan, Land Law (3rd edn, OUP 2022) ch 10.4
2
Barbara Bogusz and Roger Sexton, Complete Land Law (7th edn, OUP 2022) ch 13.2
3
Landlord and Tenant Law, Privity in contract and estate. The Law Commission. (Law Com 174) Part
2.a. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/229015/0008.pdf accessed 14.12.2022
4
Landlord and Tenant (Covenants) Act 1995
5
Ibid
 assignee tenants and landlords6; where a tenant or a landlord has assigned their
interests in a property, ‘privity of estate’ governs the relationship.
2. The covenants ‘touch and concern’ the land: (Spencer’s Case (1583)7) covenants which
concern the land but aren’t personal in nature. For example, paying rent. Covenants
which have no direct reference to the land will not transfer to an assignee 8.

An original tenant may not be liable for assignee breaches where:

a. there is a clause in the original tenant/landlord agreement providing for express

limitation as to continuing liability. (Although these are rare)9.
b. it’s been assigned as a perpetually renewable lease10.
c. the original lease has been extended by operation of statute and the breach has
been committed within the extended period11.
d. an indemnity covenant may be expressly accepted by an assignee12.

Short of contrary intention, s.79 LPA 192513 stipulates that the landlord and tenant will
remain liable for the burden of any covenant for the duration of the lease, regardless of
whether they have disposed of their interest in the property (Allied London Investments Ltd
v Hambro Life Assurance Ltd (1984)14).

A tenant may have the right to claim indemnity (recovery of sums paid) if this has been
expressly undertaken by the assignee. This is only available to immediate assignees and
where there is a chain, each assignee must expressly promise to indemnify the assignor in
respect of liabilities15. Where there is no express indemnity, it can be implied by s. 77 of the
LPA 192516, which will give the right to the original tenant to reclaim damages from the
assigned tenant.

6
Law of Property Act 1925, s. 141
7
Spencer's Case [1583] EWHC KB J53
8
Barbara Bogusz and Roger Sexton, Complete Land Law (7th edn, OUP 2022) ch 13.2.2
9
Chris Bevan, Land Law (3rd edn, OUP 2022) ch 10.4.1
10
Law of Property Act 1925 s. 145 of and Sch. 25
11
Chris Bevan, Land Law (3rd edn, OUP 2022) ch 10.4.1
12
Chris Bevan, Land Law (3rd edn, OUP 2022) ch 10.4.1
13
Law of Property Act 1925, s.79
14
Allied London Investments Ltd v Hambro Life Assurance Ltd (1984)
15
Victoria Sayles, Land Law Concentrate (8th edn, OUP 2022) ch 7 p.107
16
Law of Property Act 1925, s.79
 In using the Moule v Garret (1872)17 principle, an original tenant may sue an assignee to
reclaim damages where they are compelled to pay for the legal default18. This remedy is also
available to original tenants who find themselves liable for assignees further down a chain 19.

Application of rules to Reggie’s case

The test for continuing covenant liability is satisfied in that:

a. Reggie and Tina have entered privity of contract, being the original parties to the
lease.
b. Paying rent is a covenant which touches and concerns the land. (Spencer’s Case
(1583)20).

Reggie’s lease was signed pre-1996, which means he can be sued by Tina for arrears of rent
run up by Paula. Even if this occurred many years after the Reggie parted with the lease 21.

There may be some exceptions Reggie can rely on.

There is a possibility that the original parties (Tina and Reggie) agreed express limitation as
to continuing liability in the original clause. If this is present, Reggie will not be liable for
Paula’s rent arrears.

Reggie’s original lease will expire in 2090, and there is no evidence to suggest the lease has
been renewed (as a perpetually renewable lease) therefore Reggie cannot rely on this
exception. There is also no evidence to suggest that the lease has entered an extended
period for which Reggie would be released from liability.

Reggie could find relief, however, from an indemnity clause. If not expressed, section 77(1)
LPA 192522 implies an indemnity covenant into the assignment, giving Reggie the right to sue
Paula for breach of the covenant to pay rent. This is available because Reggie directly
assigned the lease to Paula23.

A second option, should Reggie pay the rent owed by Paula, is to seek restitutionary action
under the principle in Moule v Garrett (1872)24:

“Where one person is compelled to pay damages by the legal default of another, he is
entitled to recover from [that person] the sum so paid.”25

17
Moule v Garrett (1872) LR 7 Exch 101
18
Victoria Sayles, Land Law Concentrate (8th edn, OUP 2022) ch 7 p.107
19
Judith-Anne MacKenzie and Aruna Nair, Textbook on Land Law (18th edn, OUP 2020) ch 11 p.251
20
Spencer's Case [1583] EWHC KB J53
21
Barbara Bogusz and Roger Sexton, Complete Land Law (7th edn, OUP 2022) ch 13.2
22
Law of Property Act 1925, s. 77(1)
23
Barbara Bogusz and Roger Sexton, Complete Land Law (7th edn, OUP 2022) ch 13.2.6
24
Moule v Garrett (1872) LR 7 Exch 101
 It is important to note that under s. 17 of the LTCA 199526 (a provision in the act which has
retrospective application to pre-1996 leases), where Tina seeks to recover unpaid rent from
the original tenant, she must serve a ‘problem notice’ within six months of the rent entering
arrears. This statutory requirement ensures that Reggie is informed of the breach early
enough to take any action required to curtail future breaches.

After the ruling in Friends Provident Life Office v British Railways Board (1997) 27, s. 18 of the
LTCA 199528 (also available to pre-1996 leases) saw to it that original tenants will not be
liable for increased rents which have fallen into arrears. In other words, Reggie will not be
held under privity or contract for a variation of an agreement to which he was not privy.
Reggie will only be liable to pay the original agreed rent.

Conclusion

Lord Nicholls stated in Hindcastle Ltd v Barbara Attenborough & Associates Ltd (1997)29 that
“a person of modest means is understandably shocked when out of the blue he receives a
rent demand from the landlord of property he once leased30”.

There has been a good deal of criticism surrounding the mechanisms of continuing covenant
liability in leaseholds31, which fanned legislators to move and create the Landlord and Tenant
(Covenants) Act (LTCA) 199532. Unfortunately for Reggie, this act is largely prospective, so
instead we have had to consider the pre-1996 regime of common law rules and statutory
interventions.

Under this regime, Reggie is liable to Tina for Paula’s unpaid rent. This is due to a component
in contract law whereby contractual liability remains fixed between Reggie (the original
tenant) and Tina (the original landlord) for the duration of the lease.

Short of an agreed express limitation as to continuing liability in the original clause, or a

perpetually renewable/extended lease, Reggie is liable for Paula’s rent arrears up to (and
not in excess of) the rent amount agreed to in the original contract (s.18 LTCA 1995).

Under these conditions and assuming Tina has given suitable notice, it’s advisable that
Reggie pays the rent arrears to Tina and seeks damages or rent paid from Paula through an
indemnity clause. If an indemnity covenant is expressly excluded by the terms of the original

25
Ibid 104
26
Landlord and Tenant (Covenants) Act 1995, s.17
27
Friend’s Provident Life Office v British Railways Board [1996] 1 All E.R. 336
28
Landlord and Tenant Covenants Act 1995, s.18
29
Hindcastle Ltd v Barbara Attenborough & Associates Ltd (1997) AC 70
30
Ibid 83
31
Thornton, R. (1991). Enforceability of leasehold covenants: more questions than answers. Legal
Studies, 11(1), 47-70
32
Landlord and Tenant Covenants Act 1995
 lease, Reggie could still pursue financial retribution by employing the Moule v Garrett (1872)
principle33.

2.
Issues regarding Christine’s freehold (restrictive covenants)

Christine is the freeholder of a flat and granted a 50-year lease to Marie in 1994.

Christine is concerned that there are several restrictive covenants in the agreement which
might influence a potential sale of the freehold, should the covenants run with the land.

Christine seeks advice regarding:

a. Why it is relevant that covenants ‘touch and concern’ the land.

b. How does one ascertain whether a covenant ‘touches and concerns’ the land? and
c. Whether the following ‘touch and concern the land’:
I. “no business to be carried out on these premises”
II. “maintain the roof of the property”
III. “cut the grass in the front garden

Rules addressing Christine’s concerns

Freehold covenants must be created by deed and the original parties have privity of
contract34. Restrictive/negative freehold covenants are effectively a promise made between
a covenantor and a covenantee, not to do something35. A simple depiction was seen in
Haywood v Brunswick Permanent Benefit (1881)36 whereby Cotton LJ delivered the ‘hand in
pocket test’37. For example, a promise not to run a business on the property required the
covenantor to do nothing, ergo put their hands in their pockets.

Lord Templeman explained the distinction between positive and negative covenants in
Rhone v Stephens [1994], stating38:

"Enforcement of a positive covenant lies in contract; a positive covenant compels an owner

to exercise his rights. Enforcement of a negative covenant lies in property; a negative
covenant deprives the owner of a right over property."

33
Dixon, Martin. Modern Land Law. (12th Edition). Taylor & Francis, Published by Routledge (2021).
P.244
34
Complying with Law of Property (Miscellaneous Provisions) Act 1989, s.1
35
Chris Bevan, Land Law (3rd edn, OUP 2022) ch 12.1
36
Haywood v Brunswick Building Society (1881) 8 QBD 403
37
Ibid, 409
38
Rhone v Stephens [1994] 2 A.C. 318.
 It’s for this reason that covenants, including those of a restrictive nature, might influence the
sale or value of a property. Negative covenants effectively limit the mode of use of the land
for future successors.

Restrictive covenants in freehold flats are a common mechanism for control and often
necessary for protecting the neighbours’ rights to enjoy their flats, as well as restricting the
use of communal areas39. At law, the benefit of negative covenants runs with the land,
however the burden does not, Austerberry (1885)40. In equity however, the benefit and the
burden of negative covenants run with the land41.

Burdened land: The land which bears the burden of the covenant and is owned by
the covenantor42.

Benefited Land: The land which benefits from the covenant and is owned by the
covenantee43.

For the burden of negative covenants to pass in equity, the covenant must accommodate
the dominant tenant (under the four requirements set out in Tulk v Moxhay [1848] 44). This
provides that covenant ‘touches and concerns’ the benefited land.

Why is it important that a covenant ‘touches and concerns’ the land?

The condition was set out in Rogers v Hosegood (1900)45 whereby the covenant must ‘touch
and concern’ the original covenantee’s land. This is important, largely to prevent personal
covenants running with the land, which wouldn’t be appropriate to successors in title 46.

If covenants didn’t ‘touch and concern’ the land, they would be personal between the
parties, and not connected to the land.

For example:

I. A covenant which states that House A must take House B’s dog for a walk every
Friday, does not ‘touch and concern’ the land.
II. A covenant which states that House A mustn’t build on their land, does ‘touch and
concern’ the land.

How does one ascertain whether a covenant touches and concerns the land?

39
Ben McFarlane and Nicholas Hopkins and Sarah Nield, Land Law (5th edn, OUP 2021) ch 24.1
40
Austerberry v Oldham Corporation [1885] 29 ChD 750
41
Chris Bevan, Land Law (3rd edn, OUP 2022) ch 12.7
42
Dixon, Martin. Modern Land Law. (12th Edition). Taylor & Francis, Published by Routledge (2021).
P.340
43
Ibid
44
Tulk v Moxhay [1848] 41 ER 1143
45
Rogers v Hosegood [1900] 2 Ch 388
46
Dixon, Martin. Modern Land Law. (12th Edition). Taylor & Francis, Published by Routledge (2021).
P.349
 Tucker LJ outlined in Smith & Snipes Hall Farm v River Douglas Catchment Board (1949)47,
that:

“it … either affects the land as regards mode of occupation, or must be such as per se, and
not merely from collateral sources, affects the value of the land”48.

In P & A Swift Investments v. Combined English Store Groups [1989] 49 Lord Oliver delivers a
test as to whether a covenant ‘touches and concerns’ the land:

I. The covenant is only of benefit to the person who owns the estate in the land; if it is
separated from the land, it is no longer a use to the covenantee.
II. The covenant affects the nature, quality, how it can be used, or the value of the
land.
III. The covenant is not expressed to be of a personal nature: it is not a promise made to
a specific person.

Application on Rules to Christine’s questions

Christine has leased her property to Marie in 1994 for 50 years. Leaseholds are most often
laden with positive covenants such as to keep the property in good repair and a promise to
pay rent. On passing the Spencer test50, these covenants will run with the reversion, and
under the Landlord and Tenant (Covenants) Act 199551, all new leases will see to it that
covenants run with the reversion unless expressed as personal.

Restrictive covenants have become somewhat controversial in recent years largely due to
the pandemic which saw many people forced to work out of their homes 52. Covenants which
prohibit the use of residential property for business and trade are very common in both
freehold and leasehold titles. The situation is precarious at best, with landowners and
leaseholders unsure if they’re in breach of covenant53.

Christine would like to know if “no business to be carried out on these premises” ‘touches
and concerns’ the land. The covenant would remain meaningful even after the original
owner has left. By nature, it affects the value and mode of use of the land, and lastly the
covenant is not of expressly personal nature. Therefore, the restrictive covenant would run
with the land (Swift [1989]). A key case to consider is Newton Abbot Co-operative Society Ltd
v Williamson and Treadgold (1952)54.
47
Smith & Snipes Hall Farm v River Douglas Catchment Board (1949) 2 KB 500
48
Smith & Snipes Hall Farm v River Douglas Catchment Board (1949) 2 KB 506
49
P & A Swift Investments v. Combined English Store Groups [1989] AC 632, 642
50
Spencer’s Case (1583) 5 Co Rep 16a
51
Landlord and Tenant (Covenants) Act 1995 s.3
52
Hickey, S. Leaseholders who work from home warned they could face legal action. (October 8,
2022) The Guardian. https://www.theguardian.com/money/2022/oct/08/leaseholders-working-
from-home-legal-action-landlords-lease accessed 16/12/2022
53
Ibid
54
Newton Abbot Co-operative Society Ltd v Williamson and Treadgold (1952) Ch 286
 A positive covenant to “maintain the roof of the property” can be found to ‘touch and
concern’ the land so long as it has potential to burden any owner, affect the value of the
land, and isn’t a personal agreement in nature. In Rhone v Stephens [1994], a case which
dealt with a positive covenant in relation to a roof, Lord Templeman summarized that:

“To enforce a positive covenant would be to enforce a personal obligation against a person
who has not covenanted.55”.

The same goes for “cutting the grass in the front garden”. This falls into the realm of
maintaining the property and has scope to ‘touch and concern’ the land. However, because
this is a positive covenant, it’s less likely to run with the land. It is possible that a covenant to
cut the grass or maintain the roof is expressed in the title deed, and the original parties
intended the burden to pass. This is often seen implemented by developers on
neighbourhoods, where the covenant runs to keep the houses neat, and uniform 56. Although
such covenants are generally restrictive.

Conclusion

If Christine’s flat is registered land, all covenants are required to be registered as a notice
upon the burdened land's title (s32 LRA 2002)57. If covenants aren’t registered, they cannot
be enforced against a purchaser of the burdened estate (s29 LRA 2002) 58.

So, provided all these conditions are met, the burden of a restrictive covenant which are
deemed to ‘touch and concern’ the land will be enforced against a new owner of the
property.

In 2011, the Law Commission released a report to address several areas in which the law
could be reformed to bring clarity and consistency to freehold covenants 59. A restrictive
covenant encompasses a primarily contractual status, although it functions as a property
right60. The Commission touched upon the contractual liability which persists between the
original parties to a covenant despite changes in the ownership of land61. Nevertheless, the
Law Commission concede that the mechanism of ‘touch and concern’ prevents land being
overburdened, acting as a filter to limit the scope of enforceable covenants 62.

55
Rhone v Stephens [1994] 2 AC 310 (HL), 321
56
O’Connor, P. Careful what you wish for: positive freehold covenants. Conv. 2011, 3, 191-207 (see
198)
57
Land Registration Act 2002, s.32
58
Ibid. s.29
59
Making land work: easements, covenants and profits à prendre The Law Commission (LAW COM
No 327) 2011. 2.42 https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/
uploads/2015/03/lc327_easements_report.pdf accessed 16/12/2022
60
Ibid, 2.42
61
Ibid, 5.4
62
Ibid, 5.51
3.
Issue regarding forfeiture of Mark’s property

Mark’s tenant, George is behind on their rent payments. Mark wishes to end their lease,
which has 15 years remaining. In cases where the tenants’ obligations are stated as
covenants, the landlord can cancel the lease should their lease contain an express forfeiture
clause. (Note, in equitable leases, this clause is implied as an equitable right of entry) 63.
Cancelling a lease because the tenant has broken a provision in that lease, (in this case,
failure to pay an agreed rent) is known as forfeiture of a lease64.

Fox LJ described forfeiture in Clays Lane Co-operative Ltd v Patrick (1985) 65 as: “A right to
determine a lease by a landlord is a right of forfeiture if (a) when exercised, it operates to
bring the lease to an end earlier than it would ‘naturally’ terminate; and (b) it is exercisable
in the event of some default by the tenant”66.

Forfeiture will only be available as a remedy if certain conditions and obligations are fulfilled.
The issue rests on whether Mark understands his right to forfeit the lease and if not, how
that right arises. The rights of re-entry vary for long residential leases (more than 21 years),
nevertheless, re-entry can still provide successful forfeiture67.

Rules for forfeiture due to non-payment of rent

Forfeiture is a contractual right granted under Section 24 (2) of the Landlord and Tenant Act
195468.

Forfeiture doesn’t automatically arise as a remedy for landlords for breaches by a tenant.

A forfeiture will only be available if69:

I. in the event of breach there is a provision in the lease permitting ‘re-entry’.

II. the landlord has not waived the breach of covenant.

Section 2 of the Protection from Eviction Act 197770 prevents re-entry of a residential home
without a court order. Any attempt to re-enter without a court action will carry risk of
criminal liability. (Note: a statutory tort was later added to give tenants a right to bring civil
claims of harassment under s27 and 28 Housing Act 198871). Re-entry of a commercial or

63
Barbara Bogusz and Roger Sexton, Complete Land Law (7th edn, OUP 2022) ch 14.2.1
64
Barbara Bogusz and Roger Sexton, Complete Land Law (7th edn, OUP 2022) ch 14.2.2
65
Clays Lane Housing Co-Operative Ltd. v Patrick (1985) 17 H.L.R. 188
66
Ibid, 189
67
Dixon, Martin. Modern Land Law. (12th Edition). Taylor & Francis, Published by Routledge (2021).
P.272
68
Landlord and Tenant Act 1954, 24(2)
69
Judith-Anne MacKenzie and Aruna Nair, Textbook on Land Law (18th edn, OUP 2020) ch 12.4.1
70
Protection From Eviction Act 1977, s.2
 abandoned property must be done peacefully and in accordance with the law 72. In Billson v
Residential Apartments (1992) it was decided that where a tenant applies for relief under
s.146(2) of the LPA 192573, a landlord must postpone a lawful physical re-entry74.

If the landlord has waived the lease, it cannot be forfeited. This can be expressed or implied
by:

I. Acknowledging the breach, and

II. An unequivocal act whereby the landlord has forgiven the breach*.

*This can be implied by the landlords’ actions such as accepting rent after a breach, seizing
tenants’ property to cover arrears, or re-entering rent negotiations75.

If the right is available a landlord can pursue a forfeiture. For non-payment of rent, a
landlord must make a formal demand of their tenant between sunrise and sunset at the
property on the day the sum is due—unless the terms of the lease expressly exempt this
obligation or if the arrears are surpassed by 6 months76.

After satisfying the requirements a landlord can proceed to forfeit the lease, either by
peaceful re-entry (of commercial property), or by possession proceedings in court
(residential or commercial property).

It should be considered that tenants may have the right to avoid forfeiture. Forfeiture will be
abandoned by the court if the tenant pays arrears and court costs up to five days before the
court hearing77. The courts can also grant a stay or termination of possession proceedings
whereby the tenant can find relief upon settling all arrears78. Where a possession order has
been executed and a landlord has peacefully re-entered the property, a tenant may apply for
relief up to six months from the date the landlord gained possession79. Where statutory
relief from forfeiture is unattainable, the courts may still exercise an equitable jurisdiction
and grant relief from forfeiture where a tenant has paid all costs and arrears (Howard v
Fanshawe (1985))80.

Long lease (over 21 years) tenants enjoy stronger statutory protections. This is to prevent
landlords forfeiting over trivial breeches and failure to pay ground rent. Section 166(1) of the
71
Housing Act 1988, s.27, s.28
72
Acting not within breach of Criminal Law Act 1977
73
Law of Property Act 1925, 146(2)
74
Dixon, Martin. Modern Land Law. (12th Edition). Taylor & Francis, Published by Routledge (2021).
P.272
75
Barbara Bogusz and Roger Sexton, Complete Land Law (7th edn, OUP 2022) ch 14.3
76
Common Law Procedure Act 1852, s. 210, as amended by the Tribunals, Courts and Enforcement
Act 2007
77
County Courts Act 1984, s. 138(2)
78
County Courts Act 1984, s. 138(3)
79
County Courts Act 1984, s. 138(9A)
80
Howard v Fanshawe ([1895] 2 Ch 581
 Commonhold and Leasehold Reform Act (CLRA) 200281 ensures that a landlord must serve a
ground rent demand notice to the tenant stating a date for payment. The amount must
exceed £350 (currently)82 or be outstanding for more than a prescribed period (currently
three years)83.

Application of the rules to Mark’s case

George’s lease has 15 years remaining. In this case it is not considered a long lease (s.76
(CLRA) 2002)84.

Mark must first check that forfeiture is available, clarifying that there is a forfeiture clause,
and the breach has not been waivered. This can be done in error, however Greenwich LBC v
Discreet Selling Estates Ltd (1990)85 showed that a waiver has the potential to be withdrawn
and forfeiture can proceed.

If the breech hasn’t been waivered, Mark can proceed to make a formal demand. A formal
demand must be put to George on the day the money is due before sunset. Many modern
leases have a clause exempting this obligation86. This procedure also won’t be necessary if
George is in arrears of more than six months87.

Once the formal demand is satisfied, Mark can proceed to forfeit the lease by:

I. Physically re-entering the premises (if commercial)

II. By possession proceeding in court (if residential or commercial)

Mark should consider the courts may grant relief to George.

If Mark forfeits by re-entry, the courts can still grant George a relief from forfeiture (Bland v
Ingram’s Estate Ltd (2002)88. Section 138(2) of the County Courts Act 198489 gives George
the option to halt possession if all costs and arrears are paid up to five days before the case
is due to be heard.

If the rent was 12 months overdue:

81
Commonhold and Leasehold Reform Act (CLRA) 2002
82
Rights of Re-entry and Forfeiture (Prescribed Sum and Period) Regulations (England) 2004/3086
reg.2 and Rights of Re-entry and Forfeiture (Prescribed Sum and Period) Regulations (Wales)
2005/1352 reg.2
83
Dixon, Martin. Modern Land Law. (12th Edition). Taylor & Francis, Published by Routledge (2021).
P.273
84
Commonhold and Leasehold Reform Act (CLRA) 2002, s.76
85
Greenwich London Borough. Council v Discreet Selling Estates [1990] 2 EGLR 65
86
Barbara Bogusz and Roger Sexton, Complete Land Law (7th edn, OUP 2022) ch 14.4.1
87
Common Law Procedure Act 1852, s.210
88
Bland v Ingram's Estates Ltd & Ors | [2002] 1 P & CR 33
89
County Courts Act 1984, 138(2)
 Advice would ultimately depend on the length of the lease. In this case we understand that
George has 15 years remaining on his lease, therefore, being a year in arrears would mean
that Mark is not obligated to make a formal demand for payment of arrears under section
210 of the Common Law Procedure Act 185290.

If the lease has 25 years remaining:

If George is the holder of a long lease, Mark is required to serve a ground rent demand
notice to the tenant stating a date for payment91. George must be in arrears of an amount
exceeding £350 (currently)92 or be outstanding for more than a prescribed period (currently
three years)93. Without satisfying these conditions Mark will be unable to pursue forfeiture.

Conclusion

Forfeiture remains one of the strongest remedies in a landlord’s armoury, which is why the
procedures must be followed correctly and the courts will consider the remedy on a case-by-
case basis. Re-entry without court proceedings carries potential to breach sections 6–13 of
the Criminal Law Act 197794. In House of Lords in Billson v Residential Apartments [1992]95
Lord Templeman pronounced peaceable re-entry as a ‘dubious and dangerous method of
determining [a] lease’, and the case further discouraged landlords of using the method of
peaceful re-entry, except in cases of abandoned commercial property.

Mark’s scope for implementing a successful forfeiture will rely on vital clauses (or absence
of) in the lease agreement and the length of time the rent has been in arrears. If George is
using the property as a residential dwelling, Mark’s rights both to re-enter and to bring
forfeiture proceedings are restricted by the statutes mentioned.

90
Common Law Procedure Act 1852, s,210
91
Commonhold and Leasehold Reform Act (CLRA) 2002, s.166(1)
92
Commonhold and Leasehold Reform Act (CLRA) 2002, s.167(2)
93
Rights of Re-entry and Forfeiture (Prescribed Sum and Period) Regulations (England) 2004/3086
reg.2 and Rights of Re-entry and Forfeiture (Prescribed Sum and Period) Regulations (Wales)
2005/1352 reg.2
94
Criminal Law Act 1977, 6-13
95
Billson v Residential Apartments [1992] 1 AC 536