Before taking any action and repossessing the property, owners are well advised to get legal advice. If you are a tenant and wish to avoid forfeiture or request a formal judicial exemption from forfeiture, legal assistance is also recommended. We are experienced in this legal field, so please contact our commercial real estate lawyers in our London offices. If the offence is «intentional», the court may be less inclined to grant a waiver from forfeiture (Shiloh Spinners vs. Harding). However, the fact that an offence is «intentional» does not mean that the Tribunal should only grant recourse in exceptional circumstances; On the contrary, it is one of the factors to be taken into account in the exercise of the court`s discretion and the weight to be taken into account in the state of mind of the lessee depends on the circumstances of the case in question: Southern Depot against British Railways Board . Recently, in Freifield v West Kensington Court Ltd , the Court of Appeal upheld the orthodox position that an intentional offence does not constitute a presumption of granting an exemption from forfeiture. In this case, the court set aside the procedural judge`s decision that the exemption from seduction had been rejected on the ground that the judge had excessively weighed the premeditation of the offence (illegal subletting), without taking into account the windfall that had acquired the lessor in possession of premises subject to a long rental contract. As we explained above, the law on forfeiture is technical.
We therefore advise you to get legal advice before trying to lose a commercial lease. Call our real estate litigation team on 0800 988 7756 for a free first interview. The legal jurisdiction over exemption from disqualification does not describe the conditions under which the remedy should be granted. However, the general position is that the exemption should be granted only on conditions that allow the lessor to find himself if the lessee had not committed the breach of contract on which the forfeiture was based: Egerton v Jones . This usually (but not always) involves the payment of the lessor`s reasonable costs on the basis of compensation: Patel v K &J Restaurants . As a tenant, you can claim that the landlord is violating the rental agreement, why you withheld some or all of the rent, or that the landlord has waived an infringement on your part or non-payment of rent. If the landlord has served you with the declaration of intent to forfeit and non-payment of rent, do not ignore it. If the tenant is facing real financial difficulties, a possible alternative at the end of the rental agreement is to agree that the lease will be handed over by the tenant. This will at least avoid considerable legal costs and possible delays. The owner waives the right of expiry only if it acts in a manner that amounts to a clear recognition of the rental agreement. The test is factual, so that if in one case a given act may be a declaration of renunciation in different circumstances, the same act may be treated differently. The most frequent circumstances in which a lessor is considering the termination of a lease agreement are due to non-payment of rent.
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