How Do I Legally Recover Possession of My Commercial Premises?

Commercial landlords often face situations where they need to recover possession of their premises, typically due to tenant breach, lease expiry, rent arrears, or abandonment. However, regaining possession is not a step to be taken lightly.

It involves following legal procedures strictly, as missteps can lead to significant liability, including claims of unlawful eviction or trespass.

This article will examine the key legal mechanisms available for regaining possession of commercial property in England and Wales.

We will explore forfeiture for breach, the use of peaceable re-entry, the court possession order route, and the Commercial Rent Arrears Recovery (CRAR) process.

We will also discuss the practical and legal considerations that a commercial landlord must weigh before initiating any recovery action.

Forfeiture: What It Means and When It Can Be Used

Forfeiture is a landlord’s legal right to terminate a lease and recover possession of the premises due to a tenant’s breach of the lease terms. Forfeiture must be expressly allowed in the lease contract.

Common grounds for forfeiture include:

• Non-payment of rent
• Breach of repair obligations
• Unauthorized subletting
• Use contrary to the permitted use clause

The method of enforcing forfeiture depends on the type of breach and the terms of the lease.

Forfeiture for Non-Payment of Rent

This is the most straightforward type of forfeiture. Most commercial leases contain a clause that allows the landlord to re-enter the premises if rent remains unpaid after a specified grace period (typically 14 or 21 days).

Before proceeding, landlords should:

• Confirm that the lease contains a valid forfeiture clause
• Check if the arrears meet the required threshold
• Ensure no waiver of the breach has occurred (e.g. accepting rent after the breach)

Enforcement methods include:

• Peaceable re-entry: physically entering the premises and changing the locks
• Court proceedings: seeking a possession order from the County Court

If the landlord opts for peaceable re-entry, it must be done without force and when the premises are unoccupied. If done incorrectly, the landlord could face criminal and civil liability.

Forfeiture for Other Breaches of Lease

For breaches not involving rent arrears (e.g., subletting or disrepair), the landlord must follow a statutory procedure under Section 146 of the Law of Property Act 1925 before forfeiting the tenancy.

This includes:

• Serving a Section 146 Notice specifying the breach, any remedial action required, and a reasonable time to comply
• Waiting for the tenant’s compliance or non-compliance
• Proceeding to re-entry or applying to court for possession if the breach continues

Tenants may apply for relief from forfeiture, even after re-entry or court proceedings begin. Relief may be granted if the tenant can remedy the breach or pay compensation for it.

Peaceable Re-Entry: Risks and Requirements

Peaceable re-entry is the most direct method of recovering possession and is allowed only when:

• The lease allows forfeiture
• Rent has not been paid
• The landlord re-enters without using force or violence
• The premises are unoccupied at the time of entry

Landlords should never attempt re-entry if:

• There are people inside
• Is there any chance of a confrontation
• The tenant is in the process of applying for relief from forfeiture

Because of the legal risks—including potential criminal charges under the Criminal Law Act 1977—landlords often employ specialist enforcement agents to carry out re-entry.

Court Possession Orders: A Safer Alternative

Where re-entry is not possible or advisable, landlords may apply to the court for a possession order.

This route is typically used when:

• The premises are occupied
• The breach involves complex facts
• Relief from forfeiture is likely to be contested

The court process involves:

• Filing a claim for possession with supporting evidence
• Serving the claim on the tenant
• Attending a court hearing

If the court is satisfied that the breach occurred and forfeiture is valid, it will grant a possession order. However, the tenant may still be granted relief, especially in cases of non-payment of rent.

Although more time-consuming and costly, this method reduces the risks of unlawful eviction claims and is appropriate where peaceful re-entry is impractical.

CRAR (Commercial Rent Arrears Recovery): An Alternative to Possession

CRAR, introduced under the Tribunals, Courts and Enforcement Act 2007, is a statutory process that allows landlords to recover unpaid rent by seizing and selling a tenant’s goods.

CRAR may only be used if:

• The lease is commercial (not mixed-use)
• Rent has been outstanding for at least seven clear days
• The lease is in writing and still in force (i.e., not forfeited)
• Only pure rent is owed (not service charges or insurance)

The process involves:

• Serving notice of enforcement (minimum of 7 days)
• Authorised enforcement agents are visiting the property
• Seizing goods and selling them to recover the rent

CRAR does not terminate the lease. It is a rent recovery tool rather than a possession mechanism, but it may be used alongside or before forfeiture if landlords wish to recover funds.

Waiver of Forfeiture: What Landlords Must Avoid

A critical pitfall in recovering possession through forfeiture is the concept of waiver. Once a landlord becomes aware of a tenant’s breach, any act that affirmatively confirms the lease—such as accepting rent, demanding payment, or communicating as if the lease is still in effect—may waive the right to forfeit.

To protect their position, landlords should:

• Avoid accepting rent after the breach
• Avoid issuing rent demands
• Avoid correspondence implying the lease continues

Once the right to forfeit is waived, it is lost for that breach, though it may arise again if the breach continues or is repeated.

Abandonment: Taking Possession When the Tenant Disappears

If it appears the tenant has vacated the premises and abandoned the lease, landlords must proceed with caution.

Indicators of abandonment may include:

• No activity at the premises for an extended period
• Non-payment of rent
• Removal of business assets or signage

Before re-entering, landlords should:

• Seek written confirmation from the tenant (if contactable)
• Serve notices requesting confirmation of occupation
• Consider applying for a court order to avoid later claims of unlawful eviction

Documenting all steps and seeking legal advice is highly recommended in such situations.

Relief from Forfeiture: A Last-Chance Lifeline for Tenants

Under Section 146(2) of the Law of Property Act 1925 and the County Courts Act 1984, tenants can apply for relief from forfeiture.

The court may grant relief if:

• The breach is capable of remedy
• The tenant offers to comply, remedy the violation, or pay rent arrears
• There are no exceptional reasons to refuse

Relief is commonly granted for rent arrears, particularly where the tenant can pay within a reasonable timeframe.

If a landlord proceeds with forfeiture, they must be prepared for a potential court application from the tenant seeking to regain the lease.

Practical Tips for Landlords Considering Possession

Before seeking possession, commercial landlords should:

• Review the lease terms, especially forfeiture clauses
• Assess the nature and severity of the breach
• Consider all enforcement options (forfeiture, CRAR, court)
• Avoid waiver by not accepting rent or issuing notices
• Take professional legal advice
• Use enforcement agents when necessary
• Document every step to protect against legal challenge

Each method of recovering possession carries its risks and requirements. A strategic, legally sound approach will help safeguard the landlord’s interests while avoiding unlawful eviction claims.

Conclusion

How can I legally recover possession of my commercial premises?

The answer depends on the lease terms, the tenant’s conduct, and the landlord’s appetite for risk. Forfeiture remains the principal method—either through peaceable re-entry or court proceedings—but must be handled with care.

The CRAR process offers an alternative to recovering rent without terminating the lease. In all cases, the key is to follow due process, seek legal guidance, and proceed professionally.

Recovering possession is not merely a practical matter—it is a legal one. Missteps can be costly for landlords in terms of legal fees, damages, and reputational harm. A measured, legally compliant approach will always be the best way forward.

FAQs

Can I change the locks if my tenant hasn’t paid rent?

Yes, if the lease allows forfeiture and the premises are unoccupied, you may exercise peaceable re-entry. However, proceed with extreme caution—if the tenant is inside or challenges the re-entry, you may face legal consequences.

What happens if the tenant applies for relief from forfeiture?

If the tenant pays the rent or remedies the breach within a reasonable period, the court may grant relief and reinstate the lease. This is particularly likely in cases of rent arrears.

Is CRAR available for service charges or insurance arrears?

No. CRAR may only be used for principal rent, VAT, and interest. Service charges or insurance costs cannot be recovered through CRAR.

Can I recover possession if the tenant has abandoned the property?

Yes, but only with careful investigation. You must be sure that abandonment has occurred. If uncertain, apply to the court for a possession order to avoid claims of unlawful eviction.

How long does it take to recover possession through the court?

The process can take several weeks to months, depending on the court’s availability, the complexity of the case, and whether the tenant contests the claim or applies for relief.

Useful External Links

• www.gov.uk/evicting-tenants/forfeiture-of-lease
• www.justice.gov.uk/courts/procedure-rules/civil
• www.rics.org/uk (search for CRAR guidance)
• www.legislation.gov.uk (Law of Property Act 1925; Tribunals, Courts and Enforcement Act 2007)