What is forfeiture?
Some tenants are struggling to meet their obligation to pay the rent. This leaves some landlords in a difficult situation not knowing what to do.
A right to forfeit gives the landlord an option to exercise any right they may have to determine the lease.
The ability to forfeit enables a landlord to re-enter their property following a breach by the tenant, and by doing so, terminate the lease. Depending upon the reason for forfeiture, termination can take place with immediate effect, or following a period of notice.
In order to be able to forfeit a lease, a landlord will firstly need to establish the basis of their right to do so. The most common way to do this is to rely on a specific clause in the lease which grants to the landlord the right to forfeit in certain circumstances.
Forfeit in the absence of a specific clause
Important to note, in certain situations, a landlord can exercise a right to forfeit in the absence of a specific clause in the lease. If the tenant has breached a condition of the lease (i.e. a fundamental provision going to the root of the contract) then the right arises automatically. To prove legally if the tenant’s breach does go to the root of the contract. The danger of attempting to forfeit a lease in the absence of an explicit right to do so is that the landlord could be in breach. Legal advice should therefore be sought in relation to breach as soon as it occurs.
The lease does not end automatically on the occurrence of a specified event (or breach of condition) but is voidable at the landlord’s option. The tenant cannot take advantage of its own default to avoid the lease. Consequently, even though events have occurred which give the landlord the right to forfeit the lease, the tenancy continues until the landlord does some act which shows its intention to determine it.
Note for Assured shorthold tenancies you cannot evict a tenant without a court order. You must seek legal advice should you wish to take any legal action against your tenant.