Forfeiture of a tenancy because of breach – Part 2

Other self-help methods for landlords where the tenant is in arrears

The previous note in this series dealt with forfeiture (termination) of a lease by peaceable re-entry.  Peaceable re-entry is one of the accepted methods of self-help for landlords.  This note deals with the other two main such remedies.  They differ from the first example because they will not end the lease.

Distress

This is the landlord’s right to instruct a certificated bailiff to recover arrears of rent from the tenant by seizing, impounding and selling goods from the property that is let to a tenant.  This is with a view to obtaining an equivalent value to the rent arrears.  It does not prevent the landlord recovering any shortfall through court proceedings or other remedies.  It does, however, prevent the landlord forfeiting the lease for the same breach.

It is important to be aware that distress can operate only for the recovery of rent arrears where the sum due is certain.  It cannot be used to recover uncertain sums such as service charge or where there is a dispute.  As with forfeiture, the landlord should consider whether the tenant is insolvent as distress may not be lawful.

Additionally, violence must not be used to gain entry if there is someone at the property opposing it.  If violence is used in these circumstances, a criminal offence will be committed under Section 6 of the Criminal Law Act 1977.

The bailiff must be certificated.  This can be checked online.  He or she must enter the property at a reasonable time, between sunrise and sunset.  The bailiff must not break a door or window to gain entry or gain such entry by preventing closure of a door or window.  However, once inside, the bailiff may break down internal doors to access goods.

Property that is underlet – collection of underlease rent

If you are a landlord and your tenant has let a property (by underlease) to an undertenant you may be able to make use of the third form of self-help described below.

You can serve notice under Section 6 of the Law of Distress Amendment Act 1908 calling on the undertenant to pay his rent direct to you rather than to your tenant.  Such notice can only be served in respect of rent.  The advantage of this type of remedy is that it is not subject to requirements for court consent where your tenant is insolvent.

Note:  Whilst the above remedies are not forfeiture and do not bring the lease to an end, they can be useful tools where you are the landlord and your tenant fails to pay rent.

If you need further information please contact Michael Hartley, Peter Miller or John Campbell.