Landlord and Tenant

What can a landlord do if the tenant breaches the lease?

If a tenant is in breach of its lease during the term, there are often several possible remedies available to the landlord including:

• Forfeiture to terminate the lease;
• Damages to compensate the landlord for the tenant’s breach;
• The right to enter the property to make repairs and then recover the cost of doing so from the tenant (if there is an express right to do so under the lease);
• An injunction to prevent a tenant from breaching or continuing to breach a covenant;
• Specific performance to compel the tenant to comply with its obligations, although this is only appropriate in certain circumstances.

The most appropriate remedies for a landlord will depend on the nature of the tenant’s breach, the specific terms of the lease and the landlord’s commercial aims in relation to the property.

We can act for freeholders or intermediate landlords whose tenants are in breach of lease, including providing expert legal advice on the most suitable remedies.

How can a landlord recover payment if the tenant fails to pay rent?

If the tenant is failing to pay the rent and other sums due under a lease, there are several possible remedies the landlord can pursue to remedy the breach and recover payment. The remedies available will depend on the circumstances and may include:

• Drawing draw down from a rent deposit;
• Recovering payment from any guarantors or former tenants under the lease;
• Recovering the debt from an undertenant under Commercial Rent Arrears Recovery (if the property is commercial);
• Recovering the debt through court proceedings;
• Serving a statutory demand on the tenant, threatening to commence insolvency proceedings if the debt remains unpaid for more than 21 days.

It is important to assess whether the landlord is entitled to a specific remedy, and which is the most appropriate in the particular set of circumstances. We can represent landlords seeking to recover rent arrears and other payments due under the lease.

What can a tenant do if the landlord breaches the lease?

Generally, the tenant’s only remedy for a breach of the landlord’s covenant would be a claim for damages.

In some circumstances, a tenant may apply to court for an order for specific performance, instead of damages, to compel a landlord to comply with its obligations.

For example, in residential tenancies granted for a term of less than 7 years, the Landlord and Tenant Act 1985 implies certain landlord repairing obligations and requires landlords to ensure that their properties are fit for human habitation. If a landlord fails to comply with these obligations, the tenant has the right to for an order requiring the landlord to comply.

We can represent tenants whose landlords are in breach of lease after breaking the contract or tenancy agreement.

How can a landlord forfeit a lease?

Forfeiture is the landlord’s right to terminate the lease if the tenant is in breach of the lease.

The landlord must either send the tenant a formal demand (in the case of rent arrears) or serve a section 146 Notice (in the case of other breaches) before issuing court proceedings.

A tenant is entitled to apply for relief from forfeiture. If the court grants relief to a tenant, the lease will be restored as though the forfeiture had never taken place. 

The court’s power to grant relief will depend on whether the forfeiture relates to a breach of non-payment of rent or other breaches:

• If forfeiture is for non-payment of rent, there is an automatic right relief if the tenant pays all arrears, interest and costs at least five days before the first hearing date of the landlord’s proceedings;
• If forfeiture is for any other breaches, relief may be granted if the tenant remedies the breach, or pays compensation, and the court is convinced the tenant will perform its obligations under the lease in the future.

It is vital to instruct a solicitor as soon as possible because the efficacy of forfeiture is soon compromised. We can manage the forfeiture process on behalf of landlords or defend tenants in lease forfeiture proceedings.

Do I need the landlord’s consent to make alterations to the property?

Even in a long lease, the leaseholder will generally need to obtain consent from their landlord before making alterations, extensions or other major changes to the property. A long residential lease usually contains one of the following provisions:

• Alteration is absolutely prohibited. The tenant can still ask the landlord for permission but the landlord is under no obligation to give it;
• Alteration is prohibited except with the landlord’s consent. In this case, if the alteration qualifies as an improvement, the landlord is under the obligation to not unreasonably withhold consent;
• Alteration is prohibited except with the landlord’s consent which must not be unreasonably withheld.

A leaseholder who carries out work without the necessary consent will be in breach of the lease. A Licence to Alter is a document that contains written permission from the landlord and sets out all of the terms and conditions under which the alterations may be carried out.

We can represent landlords, by preparing the Licence to Alter and providing expert legal advice on your rights and obligations. We can also act on behalf of tenants seeking to challenge a landlord’s refusal to allow alterations.

Can a tenant dispute service charges?

A service charge is essentially a payment made by the tenant to their landlord, usually in addition to rent, for the costs incurred in providing services in relation to a property.

Most tenants of residential premises benefit from protection against excessive service charges under the LTA 1985. The key rights for residential tenants include the following:

• Landlords may only include reasonable costs in the servicecharge; 
• Tenants have rights to obtain information about costs forming part of the service charge by making section 21 and section 22 requests in writing;
• Landlords must consult with leaseholders before carrying out works above a certain value or entering into any long-term agreement for the provision of services.

Either the tenant or the landlord can make an application to the First-tier Tribunal to determine whether a service charge, or a proposed charge, is reasonable.

We can prepare and serve requests on behalf of tenants seeking to obtain more information about costs forming part of the service charge. We can also make an application on behalf of a landlord or tenant to the First-tier Tribunal.

When can a tenant sublet a property?

Leases often restrict the tenant’s ability to assign or sublet the property, subject to the landlord’s consent. Under the Landlord and Tenant Act 1927, such consent must not be unreasonably withheld.

A tenant will be in breach of a covenant not to sublet the property if it sublets the property without first obtaining the landlord’s consent.

Additionally, a tenant will be in breach of a covenant to use the house as a private dwelling house only if the property is used for holiday lets, such as Airbnb.

The landlord would then be entitled to the usual remedies for a tenant’s breach of lease or tenancy agreement.

We can act on behalf of a landlord seeking remedies for a tenant’s breach of subletting provisions, including possession proceedings and damages claims.

Can I obtain the landlord’s consent to keep pets at the property?

Many tenancy agreements contain clauses that prohibit tenants from keeping pets at a property. However, leaseholders may also be subject to similar restrictive covenants in their lease.

A tenant can make a formal request for the landlord to consent to pets living in the property. In some circumstances, the landlord may be under the obligation to not unreasonably withhold consent.

If the landlord consents, it may also be appropriate to record the change of terms of the lease through a deed of variation to be registered at the Land Registry alongside the lease.

We can act for tenants seeking to obtain the landlord’s consent to keep pets, including writing to the landlord on the tenant’s behalf and, if appropriate, preparing a deed of variation.