The relationship of landlord and tenant is one that has been developed mostly by judges, or common law. It has its roots in the feudal system of the Middle Ages and has evolved with time to the present day. The relationship is generally fairly straightforward. It is a relationship between two (or more) parties in respect of land or a property for a certain period.  

But where there is a break down of the relationship and one party does not keep to the terms of the agreement, the other party will seek a remedy. A typical remedy is forfeiture and many of the rules that set out this right date back to the 1500s. They are archaic and mostly suited to the feudal context in which they originated. Exercising the right of forfeiture can come with many possible trips and it is essential that a landlords gets advice from specialist solicitors.

It is commonly known that the law surrounding the relationship of landlord and tenant under a leasehold is both contractual, where the parties are bound by the terms in the agreement, and rights based. Case law and statute give the parties property rights (or rights of tenure), which do not only bind the parties to the agreement, but also bind anyone else who comes into contact with the property. One of these rights is the right to rent and to the remedy of forfeiture for failure to pay rent.

Forfeiture is a means of terminating a lease where one of the parties breaks a term of the lease or fails to pay rent. It is primarily relevant to commercial leases since most residential leases can only be ended by a court order.

Traditionally the right to forfeiture was automatically granted as a right and by virtue of rules set out in case law, and there was no specific term in the lease. However, most modern leases by default contain a well drafted clause in relation to forfeiture. This allows the landlord to seek forfeiture and usefully avoids the worst difficulties of the ancient and archaic rules of forfeiture.  If it is not included the landlord will be required to follow rules set down in case law before he can exercise the right of forfeiture.  A landlord who fails to follow the rules will not lawfully end the lease and risks unlawfully evicting the tenant and being liable for a damages claim.  Further if the tenant is evicted unlawfully he will have a right to reinstatement.  This can be a costly mistake.

An example of the archaic rules on forfeiture is set out in cases such as Wood v Chivers (1573)  and Chandless v Robson (1826) which state that in order to exercise the right a forfeiture a formal demand for rent must be made.  These rules must be complied with where the lease is not drafted so as to allow the landlord to seek forfeiture whether the rent is demanded or not. The case law sets out that the demand “must be made upon the land and, if there is a house on the premises, at the front door.” The demand must be only of the sum due for rent for the last period for payment and “must be made before, and continued until, sunset on the last day of payment.” This requirement to make a demand on the land itself and at sunset was to protect tenants under the feudal system from eviction. However it is totally out of context with modern living and technology, not to mention incredibly impractical and costly.

A well drafted lease will save a lot of money in avoiding the archaic legal rules.  Getting advice at an early stage will speed the process up and prevent needless expense. If the rules are not complied fully with you will not be able to bring forfeiture proceedings and risk losing time, money and rent.  It highlights the importance careful examination of the lease and an understanding of the law and also of proper legal advice both on the drafting of a leasehold agreement and before seeking to exercise the right of forfeiture.

Angelina Milon