When faced with the problem of tenant rent arrears, many landlords elect to irritate the lease to try to secure payment. Typically, this is a very effective debt recovery tool, with the tenant promptly banging on the landlord's door to pay the arrears after the pre-irritancy 14 day notice has been served in terms of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (for commercial lets) or after the AT6 has been served (for residential lets). Clearly, if the tenant pays before the notice period expires, the landlord loses its right to irritate.

However, what if the tenant comes a-knocking with his rent cheque after the notice period has expired or after decree of removal has been granted? In short, if the landlord accepts the cheque, can he be said to have waived his right to remove the tenant?

Waiver is an express or implied abandonment of a right; here, the right to irritate. It has long been established that a landlord, in accepting rent after the notice period has expired and the final irritancy notice has been served, may (depending on other circumstances) be held to have waived his right to irritate if this could be considered an unequivocal act amounting to waiver e.g. in accepting a rent cheque unconditionally.

What if rent is accepted after the decree is obtained? This was considered in Campbell v Glasgow Housing Association Limited 2010 SLT 274. In this case, the housing association obtained decree in absence for payment and ejection against a tenant after he fell into substantial arrears of rent. The tenant sought interim suspension of the decree, submitting, amongst other things, that the housing association had waived their right to eject him as they had accepted rent after obtaining decree and, separately, that a new tenancy had been created. In response, the housing association argued that whilst they had accepted rent after obtaining decree, they had not accepted rent after the date of termination provided for in that decree. As such, the waiver argument was misconceived.

It was decided that nothing in the housing association's actings, in accepting rent up until the date of ejection under decree, was inconsistent with their insisting on their right to proceed to eject, nor amounted to the creation of a new tenancy and thus there was no waiver.

However, landlords must be wary, as in certain circumstances it could be possible to argue that the landlord has waived his right to eject, or that a new tenancy has been created.

Irrespective of the decision, this case illustrates that a landlord should always be clear about the basis on which the rent is being accepted; if he continues to accept rent without qualification or if he acts in any other way that is inconsistent with the lease being terminated, he may be held to have waived his right to remove.