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Remedies including Forfeiture, Surrender & Re-Possession
When a Tenant does not comply with their Tenancy obligations a Landlord can terminate the lease, forfeiting this by either peaceably re-entering and taking control of the Property or by applying to the court for an Order. However before doing so a number of formalities will need to be checked and adhered to in order to avoid costly and lengthy litigation, as well as a hefty claim for compensation and damages should forfeiture be classed as unlawful.
With the exception of non-payments of rent, forfeiture can often only be attempted or applied for after a specified notice has been given, and in many circumstances must give the Tenant the opportunity to fix or correct the default. After forfeiture has taken place, the Tenant will usually have six months to apply for re-instatement of the lease.
When wishing to exercise forfeiture or defending against this, a check should be carried out to ensure that any right to forfeit has not been waived – especially when the Property is being managed by an agent or third party.
In all situations there is usually a requirement for the Lease to set out clearly the rights for the Landlord to forfeit the Lease, as well as statutory protections in the case of Landlord or Tenant insolvency which will need to be considered.
Equally when a Landlord defaults in any obligation, the Tenant may seek to terminate the Lease subject to the Lease being checked for a clause which allows such termination and/or seeking an order from the court. However, again the Tenant would usually be obliged to give a notice or demand for the breach to be remedied and seeking legal advice is imperative in this situation.
The alternative is to seek an agreement to surrender (effectively a mutually agreed termination of a Lease) and in this case, the terms of such should be carefully negotiated and a properly drawn up Agreement entered into so as to ensure that neither party finds themselves subject to unanticipated claims or losses.
In all cases it is essential to seek specialist legal advice as to how to terminate the lease as cost effectively and quickly as possible, or to challenge any attempt to forfeit by negotiation or court proceedings as necessary
- Property issues
- Landlord and tenant disputes
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