Service of the writ, not its issue, amounts to re-entry

In Canas Property Co Ltd v K.L. Television Services Ltd ([1970] 2 Q.B. 433, CA (Eng)) T assigned a lease to M. When the assignee fell into arrears with the rent, the landlord issued forfeiture proceedings. M disappeared and the summons could not be served on him. The landlords then began proceedings in the High Court against the original tenant seeking the rent arrears both for the period before the issue of the earlier proceedings against the assignee and for the period after that. The original tenant argued that the issue of the earlier proceedings brought the lease to an end and that it had no liability to pay rent for the period after the date of issue. This failed. It was not enough to issue the proceedings; the lease only came to an end when they were served.

Lord Denning M.R. said:

‘My conclusion is that where a tenant has been guilty of a breach which has not been waived, then, in order to effect a forfeiture, the lessor must actually re-enter, or do what is equivalent to re-entry, namely, issue and serve a writ for possession on the lessee or assignee, as the case may be. If the lessee or assignee is a partnership (or joint tenants) service on one of them is enough for that purpose … The lease is determined as from the date on which the writ is served. The rent is payable up to the date of service. Mesne profits are payable after the date of service.’ (442)

Where the lessee cannot be found there may be no need to serve provided the election to bring the lease to an end is clear and unequivocal (441). Further:

‘If the lessee has left the premises and cannot be found, service can be effected by affixing a copy of the writ to some conspicuous part of the land.’ (441).

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