Leasehold Reform: Time to Abandon Implied Surrender
| Date | 01 July 1995 |
| Published date | 01 July 1995 |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02030.x |
July
19951
Leasehold Reform: Time
to
Abandon Implied Surrender
Leasehold Reform: Time
to
Abandon Implied
Surrender
N.
Hopkins
*
In 1985 the Law Commission published a Report’ in which it recommended a
new scheme to replace the existing law of forfeiture of tenancies. In 1994 a draft
Bill to implement the recommendations, with modifications, was published.* The
purpose of this article is to consider the application of these proposals, as
implemented in the draft Bill, to premises which have been abandoned by a tenant.
This article will consider whether repossession of abandoned premises by a
landlord should be treated as acceptance of an implied surrender of the lease or
forfeiture by peaceable re-entry. Under the current law the distinction is
potentially of great practical significance. For forfeiture other than for non-
payment of rent, the landlord must serve notice on the tenant under section 146 of
the Law of Property Act 1925. In addition, it is possible to re-enter only by
obtaining a court order.3 Moreover, a surrender operates subject to the interest of
sub-lessees and mortgagees, while forfeiture destroys their interest and they must
rely on the availability of relief under section 146(4). Currently, abandonment
followed by repossession is likely to be interpreted as an implied surrender of the
lease.4 The difficulties in this analysis will be highlighted. It will be argued that
treating the lease as surrendered can at present be justified because of the obstacles
in the way of relying on peaceable re-entry. It will be shown that the same
difficulties will prejudice the application of the Law Commission’s
recommendations.
The
Law
Commission’s
proposals
Under the proposals, the existing law of forfeiture and re-entry is abolished. In its
place, a scheme will be introduced under which court proceedings will always be
necessary to terminate a tenancy unless there is a surrender. Therefore, there
is
no
equivalent to peaceable re-entry. Under the scheme, a breach by the tenant of a
leasehold obligation is a ‘termination order event.’ On the occurrence of such an
event, the landlord may apply to the court for a termination order to bring the
tenancy to an end.
Special provision is made for abandoned
premise^.^
The Report noted that,
while the general scheme could apply to abandoned premises, objections could be
raised to requiring the landlord to follow the procedure: in particular, the added
*Lecturer
in
Law, University of Durham.
I
would like to thank Carl Emery for his comments on drafts of this article.
1
Law Corn
No
142 commented on by Smith [1986] Conv 165.
2 Law Corn
No
221 commented on by Wilkinson [1994] Conv 177, and Codd and Bayley [1994]
NU
1420, 1456.
3 Protection from Eviction Act 1977,
s
3.
4
See
eg
R
v
London
Borough
of
Croydon,
ex
p Toth
(1986) 18 HLR 493 (HC), (1988) 20 HLR 576
(CA);
Ciry
of
Westminster
v
Peart
(1992) 24 HLR 389. The argument was made but failed on the facts
in
Preston BC
v
Fairclough
(1982
-
83) 8 HLR
70;
Chamberlain
v
Scalley
(1994) 26 HLR 26;
Cooper
v
Varzdari
(1986) 18 HLR 299.
5
Report,
Pt
XI.
0
The
Modem
Law
Review
Limited
1995
547
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