“Cheer up mate – we haven’t been able to forfeit your lease after all”

A review of the Upper Tribunal’s decision in Cheerupmate2 Ltd v Calce [2017] UKUT 377 (TCC).

An earlier decision in the First-tier Tribunal had found that an aptly named landlord, Cheerupmate2 Ltd, had not successfully forfeited the lease of its tenant, Mr Calce.

Cheerupmate2 Ltd held a long lease which was subject to the 900 year underlease which had been held by Mr Calce since 1997. That underlease reserved a rent of just £2 per annum. Following rent arrears and because, in the usual way, Mr Calce’s lease allowed for forfeiture for non payment of rent, Cheerupmate2 Ltd had entered Mr Calce’s land by peaceable re-entry for non payment of ground rent and sought to forfeit Mr Calce’s long lease. The total amount of rent alleged to be outstanding amounted to £11.

The Commonhold and Leasehold Reform Act 2002 restricts landlords rights of forfeiture if either the arrears are less than £350 or if the rent has not been outstanding for more than three years and that act further requires landlords to have first served a notice requiring any tenant under a long lease of a dwelling to make a payment of rent.

The notice served by Cheerupmate2 Ltd was found not to be in the form prescribed by the Commonhold and Leasehold Reform Act 2002 and the judgment further found that the date specified by the section 166 notice was when the rent became payable and not from the
date on which it was due according to the lease. Accordingly the Commonhold and Leasehold Reform Act 2002 delays the tenant’s liability for rent until the notice is served.

Accordingly, Mr Calce’s landlord’s actions were found to be a trespass on his land which the tribunal ordered to be returned to him without delay.

The tribunal awarded Mr Calce’s costs of his appeal.

For advice on forfeiture or any other property matter, email Nicky Cleightonhills on ncleightonhills@meaby.co.uk.

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