Direct access to a barrister

No need to instruct a solicitor

Regulated by the Bar Council

through the Bar Standards Board

Professional Indemnity Insurance

Up to £1,000,000 per claim

Forfeiture, Unlawful Forfeiture
& Relief from Forfeiture

Are you a landlord who is considering forfeiting, or has forfeited, a commercial lease?

Are you a tenant looking to challenge the landlord’s right to forfeit and / or apply for relief from forfeiture?

This page is for information only and does not constitute legal advice.


Early termination of a lease for breach of covenant may be brought about by forfeiture.

However, the law relating to forfeiture is archaic and complex and mistakes are often made. These mistakes can be costly.

Where a right to forfeit exists, a landlord can forfeit the lease either by effecting peaceable re-entry or by issuing forfeiture proceedings under CPR 55.

Whilst there are advantages for a landlord taking physical possession including it being quicker to recover possession than by using court proceedings, the prudent approach is usually to obtain a court order for possession.

The disadvantages of taking physical possession include the following:

  • There is a risk that the tenant may apply to the court for the lease to be reinstated making it more difficult for the landlord to commercially exploit the premises.
  • The tenant may have a claim for wrongful forfeiture and damages for loss of use of the premises which may be substantial.
  • The landlord may become an involuntary bailee of items belonging to the tenant and left at the premises.

Wrongful Forfeiture or Relief from Forfeiture – Why does it matter?

The difference between claims for wrongful forfeiture and relief from forfeiture is important for the following reasons.

In the case of relief from forfeiture, conditions of relief usually involve paying all arrears of rent / remedying any other breach of covenant and paying the landlord’s costs. Only a court can grant relief from forfeiture (although a consent order without a hearing is possible but only if the landlord agrees).

In the case of wrongful / unlawful forfeiture, the landlord’s actions amount to trespass, remedies for which are injunctive relief and damages, including damages for loss of business. Additionally, the landlord is reasonably likely to be liable for tenant’s costs. There is also the possibility of applying for an interim injunction to re-admit the tenant to the premises pending the court hearing some time away.

Wrongful / Unlawful Forfeiture?

Below is a non-exhaustive list of matters to be considered before turning specifically to the question of relief from forfeiture.

  • null
    Is a right to forfeit provided by the lease?
  • null
    Has a forfeiture “event” arisen?
  • null
    Has the landlord exercised the right to forfeit in accordance with the lease?
  • null
    In the case of breaches of covenant other than non-payment of rent, has the landlord served a section 146 notice?
  • null
    In the case of breaches of covenant capable of remedy by the tenant (other than non-payment of rent), has the landlord provided a reasonable period of time in the section 146 notice for the tenant to remedy the breach?
  • null
    Has the landlord “waived” the right to forfeit by action recognising the continued existence of the lease?
  • null

    If so, is the waiver of the right to forfeit in respect of a ‘once and for all’ or ‘continuing’ breach of covenant?

Relief from Forfeiture

Forfeiture has been described as an equitable security the landlord has against non-payment of rent or other breaches of covenant by the tenant.

It is settled that after forfeiture has occurred, it is not possible for the parties as between themselves to agree to relief from forfeiture as this would create a new lease and not resurrect the old lease.

Relief from forfeiture may only be obtained by an application to the court  Zestcrest Ltd v County Hall Green Ventures Ltd [2011] 50 EG 60.

A landlord is unlikely to want to agree to a new lease as this has ramifications in respect of any guarantors and rights under Part II of the Landlord and Tenant Act 1954 to name but two.

If relief from forfeiture is granted by the court, the old lease is resurrected as if it had never been forfeited.

In the case of non-payment of rent by the tenant, relief from forfeiture is likely to be granted by the court provided the tenant is able to pay off the arrears and the landlord’s costs associated with the forfeiture.

In the case of breaches of covenant other than non-payment of rent, a court will usually grant relief if the tenant remedies the breach, pays the landlord’s costs of the forfeiture and is unlikely to breach its obligations in the future. Where the breach cannot be remedied, a court may still order relief if the tenant pays compensation.

The court, when exercising its discretion, will consider the tenant’s conduct, the seriousness of the breach, the value of the premises and the tenant’s financial status.

A tenant should not unduly delay an application for relief from forfeiture. In the county court, where forfeiture has been effected by peaceable re-entry, the tenant should apply for relief within 6 months although the application should be made with ‘reasonable promptitude’. Any unnecessary delay will make it harder to persuade a court to grant relief.

Find out how Barrister KnowHow can help you or your business