Forfeiture

Citation

(1999), "Forfeiture", Property Management, Vol. 17 No. 1. https://doi.org/10.1108/pm.1999.11317aab.007

Forfeiture

Forfeiture

Adagio Properties Ltd v. Ansari [1998] 35 EG 86

In this case, the court had to consider the question of the adequacy or otherwise of the s. 146 notice which was served by the landlord prior to the institution of proceedings for forfeiture. Briefly, the lease contained a qualified covenant against alterations, and the tenant had sub-divided the premises in question into two without first applying for the landlord's consent. The property in question was a single residential flat, and the tenant had converted it into two studio flats by the construction of a dividing wall, and the removal of the bathroom, and various other alterations had been carried out as well. The s. 146 notice set out the alleged breach as ". . . making alterations so as to divide [the property] into two separate studio flats without permission . . .". The notice apparently did not spell out exactly what works were required to be done by the tenant to remedy the breach: he was simply required to restore it to a single dwelling.

The Court of Appeal held that the notice was valid, quoting with approval both the words of Buckley LJ in Jolly v. Brown [1914] 2 KB 109 at p. 127, when it was in the Court of Appeal, and the words of Lord Buckmaster LC, when the case reached the House of Lords under the name Fox v. Jolly [1916] 1 AC 1, the latter being brief and to the point:

. . . I can find nowhere in the section any words which cast upon the landlord the obligation of telling the tenant what it is that he must do. All that the landlord is bound to do is to state particulars of the breaches of covenants of which he complains and call upon the lessee to remedy them. The means by which the breach is to be remedied is a matter for the lessee and not for the lessor.

In many cases, specification of the breach will of itself suggest the only possible remedy.

As to relief from forfeiture by a mortgagee of the leasehold estate after it had been disclaimed by the lessee's trustee in bankruptcy, see: Barclays Bank plc v. Prudential Assurance Co. Ltd [1998] 10 EG 159, where the court held that it did have jurisdiction to grant relief but in this case only on the basis that it accepted the burden of complying with the covenants contained in a second supplemental lease as well as the benefits contained in the principal lease: the mortgagee was not allowed to "cherry pick".