What happens if they break back into the property?
It is both a criminal and civil offence for the former tenant to re-enter the property without permission once the lease has been forfeited by the landlord.
The former tenant must be provided given the opportunity to access the property in order to remove their possessions. This should always be under the supervision of the landlord and/or the landlord’s agent. London Lease Forfeiture, as the landlords agent are able to re-attend the property to provide supervised access if required. If the former tenant fails to take possession of their goods left at the property you may need to store them for a period of time before they can be sold or before you dispose of them.
We can also help arrange security measures such as metal doors, screening and alarms if necessary. It is often worth considering these extra security measures to secure the premises against re-entry. If the premises are likely to remain unoccupied for any length of time, we recommend our clients consider protecting their property against trespassers/squatters.
Are there any alternatives to forfeiting a commercial lease?
Yes there is alternative. Rather than evict your commercial tenant, you could use London Lease Forfeiture to recover the rent arrears. Using their powers under the Tribunal Courts and Enforcement Act, our agents can seize the tenant’s goods if payment of the rent is not made. This process is known as CRAR ( Commercial Rent Arrears Recovery ).
Can I instruct you to use both CRAR and Peaceful Forfeiture at the same time?
No. The two methods cannot be used for the same breach of the tenancy agreement, so you will need to decide which method is best for you, this was recently clarified in Thirunavukkrasu v Brar & Brar  EWHC 2461 (Ch).
Can I forfeit a lease where no written lease exists?
Usually you will only be able to forfeit a lease where there is a written lease in place with an appropriate clause which will allows re-entry, termination and repossession under certain conditions.
In some very limited circumstances you may be able to forfeit the lease by repossessing the premises where there is no written tenancy agreement in place. If you are faced with this situation, please call us to discuss your circumstances.
Will my tenant be able to continue the lease if the rent arrears are paid following forfeiture of the lease?
The former tenant does have a legal right to apply to the court to claim what is known as ‘Relief from Forfeiture’ up to 6 months from the date of the re-entry. In order to do this the tenant will need to make an application to the Court, pay a court fee, pay all the rent arrears plus the landlord’s costs in exercising the forfeiture. Should relief from forfeiture be granted by the Court, the lease will continue, as if it had never been forfeited. If the rent arrears and landlords costs are paid but the tenant does not make an application to the court for relief from forfeiture, you may consider offering and documenting a new lease.
Have I waived my right to forfeit a commercial lease?
If a tenant is in breach of a covenant in the lease such as failure to pay the rent when it falls due and the landlord then accepts rent with knowledge of that breach, the landlord may well have “Waived” their right to forfeit in respect of that breach.
To amount to a waiver, the rent must have (a) accrued since the landlord became aware of the forfeiture possibility; and (b) been paid and accepted as rent by the landlord.
If a landlord acts in such a way as to recognise to the continued existence of the lease and their landlord and tenant relationship, there is a risk that the right to forfeit the lease for a particular period will have been waived. This is a very complicated area of law and we would strongly suggest that you speak to our partnership specialist property solicitors who will be able to advise you regarding your situation. Please call our freephone number to discuss the matter.
The property is a shop with a flat above. Can you just take possession of the commercial element?
No we cannot. It is an established principle that the lease and premises must be for commercial use only. A mixed use premises such as pubs and shops with flats above a good example. Case law, and in particular, Pirabakaran v Patel & Patel  26 May has reinforced this principle.
In this case the tenant had a shop with a flat above in which he lived and was part of a business tenancy. When he fell into arrears with his rent the landlords forfeited the lease with Bailiffs taking possession of the shop and flat. The Court of Appeal held that the forfeiture was in breach of legislation. The landlords had not obtained a court order for possession of the flat as required by Section 2 of the Protection from Eviction Act 1977, therefore their actions were unlawful.
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