Fundamental importance of the right to apply for relief from forfeiture: Golding v Martin

In Golding v Martin ([2019] EWCA Civ 446), the tenant of a long lease of a flat failed to pay a service charge reserved as rent. The landlord brought forfeiture proceedings and was awarded possession. The landlord gave the flat to his daughter and she sold it. The tenant, who lived in Spain, found out what had happened and sought to have the order set aside. The Court of Appeal set the order aside on the grounds that the County Court did not have power to make the order in the terms in which it had been made.

Section 138(3) of the County Courts Act 1984 specifies the form of the order that the County Court can make. The order for possession may not take effect within four weeks from the date of the order nor may it be unconditional. The order made in the present case was an immediate unconditional order.

The point was raised for the first time on appeal but this was one of those exceptional cases in which this was permissible since it went to the jurisdiction of the County Court (Pittalis v Grant [1989] QB 605).

The point was ‘no mere technicality’ since, ‘Where the forfeiture of a long (and potentially valuable) lease is in issue it is plainly of the utmost importance that the lessee be given the right to pay.’ ([20]).

The landlord argued for an alternative interpretation of section 138 which would have meant that the County Court had no right to grant relief from forfeiture in cases of non-payment of rent.

The Court of Appeal rejected this argument, emphasising the fundamental importance of the right to grant relief:

‘it is in our judgment inconceivable to imagine that Parliament could have intended that an important safeguard for tenants should be completely by-passed in the event of a sumamry disposal of a claim to forfeit on the ground of non-payment of rent. To attribute such an intention to Parliament would be to attribute to it an intention to legislate for an irrational scheme.‘ ([31]) (emphasis added).

Michael Lower

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