Handy navigation tool on the realities of forfeiture

In the foreword to this book, by Mr Justice Morgan, there is a useful potted history of the development of the law in this area and previous attempts at reform.

Chapter 1 is a helpful gallop through the nature of forfeiture, reminding the reader of commercial and practical realities that a landlord will be bearing in mind. It also touches upon potential alternative remedies.

Chapter 2 covers the right to forfeit. There is a reminder of the distinction between conditions and warranties in general contracts and an explanation of their status in relation to a lease and the right to forfeit.

This chapter goes on to deal efficiently with both express rights of re-entry and those cases where there is no express right and instead the landlord relies upon breach of an express or implied condition of the lease. There is an analysis of who can or cannot forfeit, including commentary on an intriguing niche point regarding a tenant’s potential determination of a lease in response to a landlord’s repudiatory breach.

Chapter 3 deals with the concept of breach, covering non-payment of rent as well as several other covenants.

Chapter 4 takes us through the potential limitations on the exercise of the right to forfeit, including a good concise explanation of the Section 146 notice procedure.

Other limitations on the right to forfeit, especially in the context of residential leases, are discussed in chapter 5.

Tenant insolvency and its status either as a trigger for forfeiting a lease or separately as a fetter on the right to do so are covered in chapter 6.

Waiver is always a complicated animal. The anecdotal extract taken from a 1967 case at the start of chapter 7 acknowledges this, deploying the very apt phrase of ‘minefield’. This chapter also includes some very useful information and day-to-day examples.

Chapter 8 tells the reader how to forfeit in actual physical terms and also includes some relevant analysis of applicable court rules and processes, and a good summary of the position in relation to costs.

The concept and practicalities of relief from forfeiture are well laid out in chapters 9 to 11, with chapter 10 particularly focusing on rent arrears. Chapter 11 covers third parties, especially sub-tenants and mortgagees Forfeiture of Leaseswhose standing will also be affected by any forfeiture of the main lease.

Finally, chapter 12 rounds up the post-forfeiture considerations relating to the title, tenant’s belongings and dealings with the reversion, while chapter 13 builds upon the concepts discussed in the foreword and the potential avenues for reform of the law.

I found this book to be a clear and concise guide which I will certainly turn to when dealing with relevant client enquiries in practice.

The authors have succeeded in putting together a resource which intuitively answers a number of practice points which a practitioner will want to be able to check, both at the outset and during the progression of a case.

Jenny Kemp is an associate at WBW LLP, Newton Abbot