Archive for the ‘relief from forfeiture’ Category

Right to apply for relief after forfeiture by peaceable re-entry

January 24, 2012

A tenant’s right to apply for relief from forfeiture begins when the landlord serves notice (under CPO, s58, LPA 1925, s.146(1)) and ends once the landlord has taken possession pursuant to a judgment ordering that he be given possession. A tenant has a right to apply for relief even after a peaceable re-entry.

In Billson v Residential Apartments Ltd ([1992] 1 AC 494, HL) T, in breach of covenant, carried out alteration works at the property. L served a notice under section 146 of the Law of Property Act 1925 (equivalent to section 58 of the Conveyancing and Property Ordinance). T showed no sign of complying and L then effected a peaceable re-entry. T sought relief pursuant to section 146(2) (in the same terms as section 58(2) of the Conveyancing and Property Ordinance). This allows T to seek relief , ‘Where a lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture’. L argued that it was no longer proceeding to enforce the right; it had enforced it through its peaceable re-entry. The argument failed. Tenants have a right to apply for relief in these circumstances. A tenant’s right to apply for relief from forfeiture begins when the landlord serves notice (under CPO, s58, LPA 1925, s.146(1)) and ends once the landlord has taken possession pursuant to a judgment ordering that he be given possession. A tenant has a right to apply for relief even after a peaceable re-entry.

Questions of statutory interpretation aside, the House of Lords clearly wanted to promote ‘the civilised method’ and discourage ‘a dubious and dangerous method of determining the lease’ (per Lord Templeman at 536).

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Relief against forfeiture on a second occasion where late payment was inadvertent

October 7, 2011

In Far East Land Holdings Ltd v Empire Asian Ltd ([2011] 4 HKLRD 472) the landlord had obtained an order for possession on the basis of the tenant’s failure to pay the rent. The tenant successfully applied for relief against forfeiture. By mistake, it was a few days late with a subsequent payment. This payment was, however, accepted by the landlord. The landlord, nevertheless, sought possession. The tenant was granted relief a second time on the basis that the delay was a slip on its part and the court has both statutory and an inherent equitable discretion to grant relief a second time. In any event, the landlord had waived the breach by accepting the late rent payment.

The court can grant relief from forfeiture after peaceable re-entry

January 6, 2011

The court can grant relief from forfeiture whether the landlord has recovered possession as a result of court proceedings or by peaceable re-entry. The right to apply for relief is a chose in action that can be assigned.

In Howard v Fanshawe ([1895] 2 Ch 581) a tenant had fallen into arrears with the rent. The landlord re-entered peaceably (easily done since the tenant hadn’t finished building houses on the properties and they had no back door). It was held that the court could grant relief even though there had been no court proceedings. This right is a chose in action that the tenant’s trustee in bankruptcy could transfer to a purchaser.