Section 146 of the Law of Property Act provides that, in most instances, where a landlord wishes to exercise a right of re-entry to forfeit a lease for breach of covenant or condition it must first serve a notice specifying the particular breach and, if the breach is capable of remedy, requiring the tenant to remedy the breach within a reasonable period of time.
In a recent decision (Toms v Ruberry), the Court of Appeal held that a section 146 notice cannot be served until the right of re-entry has become enforceable under the terms of a lease.
In that case, the landlord of pub premises in Cornwall alleged that its tenant was in breach of various lease covenant. The lease provided that where the tenant was in breach of its obligations the landlord was required to serve a written notice requiring the tenant to remedy the breaches within 14 days of receipt of the notice.
The landlord served on the tenant the default notice and, at the same time, a section 146 notice and subsequently sought possession of the premises. The landlord’s claim for possession was dismissed and the landlord appealed.
The landlord’s appeal was dismissed. The appeal court held that the landlord was not entitled to serve a section 146 notice until the 14 day default notice had passed without the breaches being remedied. At was only at that point that the landlord’s right of re-entry would be exercisable.
The decision demonstrates that landlord’s must take care to follow the precise wording of the lease when seeking to exercise their right of re-entry to check that the right has arisen.
If you have questions or require assistance with any of the above, please contact Irina Apekisheva by email on iapekisheva@jpclaw.o.uk by telephone on 020 7644 7283 or connect with her on LinkedIn.
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice.
