How Do I Evict a Commercial Tenant Who Is Breaching the Lease?
Evicting a commercial tenant who is breaching the lease can be a legally sensitive and financially significant process.
Whether the tenant has failed to pay rent, has sublet the premises without permission, or is using the property for unlawful purposes, landlords have specific rights—but also obligations—to act lawfully.
In England and Wales, the process differs markedly from residential evictions and requires strict compliance with lease terms and statutory procedures.
This guide will walk commercial landlords through the process, outlining the key steps, risks, and considerations involved in eviction for lease breach.
We will also address common landlord concerns, including whether a court order is needed, when peaceable re-entry is allowed, and what happens if the tenant disputes the breach.
Understanding Lease Breaches in Commercial Tenancies
Commercial leases are contractual agreements. Breach of lease occurs when the tenant fails to meet one or more of the agreed terms. Common breaches include:
- Non-payment of rent or service charges
- Subletting without consent
- Causing damage to the premises
- Operating a different type of business than agreed
- Breaching repair and maintenance covenants
- Engaging in illegal or disruptive conduct
The severity and nature of the breach will influence how the landlord may respond. Some breaches allow immediate action, while others may require a formal notice or the opportunity to remedy.
Forfeiture: The Legal Right to End the Lease
The most common way to remove a commercial tenant who is in breach is through forfeiture. Forfeiture is the landlord’s legal right to end the lease early due to the tenant’s breach.
However, forfeiture is only available if the lease contains a forfeiture clause (also known as a re-entry clause). This clause must be triggered correctly; otherwise, the landlord may be accused of wrongful forfeiture and face damages or reinstatement of the lease.
Can You Re-Enter the Premises?
Forfeiture can be carried out in two ways:
Peaceable Re-entry
This is when the landlord physically re-enters the premises, typically by changing the locks, to terminate the lease. It is commonly used in cases of non-payment of rent.
Key points:
- Must occur when the premises are unoccupied
- No force can be used—only “peaceable” entry is permitted
- Should ideally be carried out by a professional enforcement agent
- Cannot be used if there is a risk of confrontation
- A notice of repossession should be clearly posted
While quicker and less expensive than court proceedings, peaceable re-entry carries risk. If entry is not truly “peaceable,” or the tenant was not in clear breach, the landlord may face legal claims.
Court Proceedings
For other types of breaches—such as subletting or misuse of the premises—landlords generally must apply to court for possession. This process involves:
- Serving the correct notice (typically under Section 146 of the Law of Property Act 1925)
- Allowing the tenant an opportunity to remedy the breach (unless it’s not capable of remedy)
- Waiting a reasonable time before issuing proceedings
The court will assess whether the breach is proven and serious enough to justify forfeiture. In many cases, tenants will be given a chance to remedy the issue.
The Section 146 Notice Explained
If the breach is not related to rent arrears, the landlord must serve a Section 146 Notice. This is a formal warning to the tenant that they are in breach of lease and that the landlord intends to forfeit the lease unless the breach is remedied.
A valid Section 146 Notice must:
- Identify the breach
- Require the tenant to remedy the breach (if possible)
- Require the tenant to pay any compensation for loss
- Give reasonable time for compliance
Serving a Section 146 notice is a precondition before court action for possession. Failing to serve it correctly can invalidate the landlord’s case.
When is a Court Order Required?
A court order is usually required when:
- The tenant disputes the breach
- The tenant is still in occupation
- The breach is not for non-payment of rent
- There are complexities around forfeiture (e.g., multiple tenants or subtenants)
Even in rent arrears cases, if the tenant remains in the property or force is needed to gain entry, court proceedings may be safer and more legally secure.
Relief from Forfeiture: Can the Tenant Get the Lease Back?
One of the key risks of forfeiture is the tenant’s right to apply for relief from forfeiture. This legal remedy allows the tenant to ask the court to reinstate the lease if:
- They can remedy the breach (e.g., pay the arrears)
- They act promptly and show good faith
Relief from forfeiture is commonly granted, particularly for non-payment of rent. This can undermine the landlord’s efforts to regain possession, so strategic legal advice is essential before taking action.
Considerations Before Attempting Eviction
Before moving to evict a commercial tenant, landlords should carefully assess:
- Is the breach clear and provable?
- Is there a forfeiture clause in the lease?
- Is the breach remediable or irreparable?
- Has the correct notice been served?
- Will peaceable re-entry be safe and lawful?
- Are there subtenants or third-party occupiers?
Acting hastily or without full legal understanding can expose the landlord to claims for wrongful eviction or damages.
What If the Tenant is Insolvent?
If the tenant is in liquidation or administration, landlords must tread very carefully. During administration, there is an automatic moratorium on legal action, which means forfeiture or court proceedings usually cannot proceed without permission from the court or the administrator.
Insolvency changes the legal landscape, and landlords must seek specialist advice before attempting eviction in such cases.
Recovering Rent Arrears Separately
It is important to note that forfeiture does not automatically recover arrears. Landlords may use Commercial Rent Arrears Recovery (CRAR) to seize tenant goods if the breach is rent-related, but this is a distinct legal process.
Alternatively, landlords can issue court proceedings to recover unpaid rent even if forfeiture is not pursued.
Common Pitfalls and How to Avoid Them
Accepting Rent After Breach
Accepting rent after learning of the breach can waive the right to forfeit. Landlords must act consistently with their intention to end the lease.
Invalid Notices
Improperly drafted or incorrectly served Section 146 Notices can delay proceedings or render them void.
Re-entering When Tenants Are Present
Attempting peaceable re-entry while the premises are occupied can lead to criminal and civil liability.
Overlooking Subtenants
Subtenants may have rights to remain or be served with notices. Their presence must be addressed legally.
Delaying Action
Delay may give tenants time to claim relief or reorganise, weakening the landlord’s position.
FAQs: Evicting a Commercial Tenant for Breach
Can I evict a commercial tenant without a forfeiture clause in the lease?
No. If the lease does not contain a forfeiture clause, you cannot legally end the lease early due to breach. Your only remedy may be damages via court proceedings.
Can I change the locks myself?
Only in very limited circumstances—such as clear rent arrears and unoccupied premises—can you re-enter peacefully and lawfully change the locks. It is best done with legal support or through certified enforcement agents.
How much notice do I need to give under Section 146?
The law does not specify a fixed period, but courts expect landlords to give a “reasonable time” to remedy the breach. This depends on the nature of the breach, typically between 14 and 28 days.
What if the tenant refuses to leave after forfeiture?
If the tenant resists or re-enters after forfeiture, you may need a possession order from the court and potentially enforcement by bailiffs.
Can I evict a commercial tenant for breaching a repair covenant?
Yes, but you must serve a Section 146 Notice and often allow the tenant a chance to carry out the repairs. For some breaches, a prior notice under the Leasehold Property (Repairs) Act 1938 may also be required.
Will I get rent owed if I forfeit the lease?
Not automatically. You may still have to pursue the tenant in court or use CRAR if eligible. Forfeiture ends the lease but does not cancel previous debts.
What happens if the tenant applies for relief from forfeiture?
The court will assess whether the tenant has remedied the breach or made sufficient efforts. Relief is commonly granted for rent arrears if full payment is made swiftly.
Can I evict for illegal use of the property?
Yes. If the tenant is using the premises for unlawful purposes (e.g., unlicensed activity), this can constitute a serious breach. In such cases, forfeiture may be immediate, but legal advice is vital to ensure evidence is robust.
What if there are subtenants or licensees in the property?
They may have separate rights. The forfeiture notice may need to be served on them, or you may need to apply for a possession order that includes them.
Can a tenant stop the eviction by paying rent after I have served notice?
Possibly. Accepting rent after notice can waive your right to forfeit. Be cautious not to undermine your position—consult a solicitor before accepting payment.
Final Thoughts
Evicting a commercial tenant for lease breach is a complex legal process that carries financial and reputational risks. Landlords must proceed carefully, ensuring they follow correct legal steps, give appropriate notices, and assess the risk of tenant retaliation or court action.
While peaceable re-entry is available in some rent arrears cases, court proceedings remain the safer path when the breach is disputed or involves other lease terms.
Professional advice is always recommended before attempting forfeiture. With careful planning and legal compliance, landlords can protect their investment while minimising the risk of litigation.
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