Home Page > Property Law Library > Landlord and tenant (general) > Forfeiture > Waiver

Home Page
Contact
Editorial Team

Rent claims
Other cases
Section 146 notices
Waiver
Registration gap
Court procedure
Relief
Unlawful forfeiture
Law reform

Current page






Waiver

Once and for all breach

To do something within a particular time

Channel Hotels and Properties (UK) Ltd v Tamimi
[2004] EWCA Civ 1072.

This case concerned the development of the roof space above a block of flats. A breach of a covenant to carry out the development as expeditiously as possible was a once and for all breach. If a covenant is one to do something by a particular date, including a covenant to repair by such a date, that is a covenant which can be broken only once. The same applies to a covenant to do something within a reasonable time. (Farimani v Gates [1984] 2 EGLR 66 applied). In this case it was possible to point to a time by which the works, if carried out and completed as expeditiously as possible, should have been completed. The landlord had waived its right to forfeit by demanding and accepting rent (as well as other conduct).


Acceptance of cheque

To secure dismissal of bankruptcy proceedings

Osibanjo v Seahive Investments Ltd
[2008] EWCA Civ 1282

Summary

The Court of Appeal has held that acceptance of a cheque tendered by the tenant in part to secure the dismissal of bankruptcy proceedings, did not amount to an act of waiver of the right to forfeit.

Facts

T was the tenant of commercial premises under the terms of a lease dated 15 April 1998 for a term of years expiring on 25 March 2014. L was the landlord.

T fell into arrears of rent and L served a statutory demand in respect of those arrears. L subsequently issued a bankruptcy petition based on the arrears. After the issue of the petition, L became aware of breaches of the alienation, user and alterations covenants. Subsequently, T tendered a cheque to L for £10,000 and stated that the cheque was:
    “.. to discharge the outstanding Bankruptcy sum and the remainder as part payment for arrears of rent.”
The outstanding bankruptcy debt amounted to £3,414.80. L banked the cheque, retained the £3,414.80 and a week later returned the balance of £6,585.20 to T stating in its covering letter:
    “For the avoidance of doubt the clearance of your cheque through this firm's client account should not be regarded as a waiver by our client of his right to forfeit the lease.”
Issues

The questions before the court were whether the following actions amounted to waiver of the right to forfeit for the fresh breaches of covenant:
  • The banking of the cheque.
  • The commencement and pursuit of the bankruptcy proceedings.
  • The acceptance of the monies to discharge the bankruptcy debt.
The court at first instance held that none of the above steps amounted to waiver. T appealed.

Decision

The Court of Appeal dismissed the appeal. Mummery LJ gave the main judgement of the court. He said that acceptance of the cheque of itself did not amount to waiver.

Firstly it was not possible to accept the monies for the bankruptcy debt without banking the cheque, the basis for the division of the monies having been made clear both by T in tendering and by L in returning the balance. There was no ground for supposing that the amount repaid by L had been accepted by it as rent.

Secondly, the court said, the processing of the cheque itself is not conclusive evidence that the payment was accepted as rent
    “..the processing of the cheque is not in itself conclusive of the question whether the payment was accepted as rent. The processing is evidence of payment to Seahive, but for waiver of forfeiture it must also be shown that the payment was accepted and that it was accepted as rent by the landlord. In this case only part of the sum realised by the processing of the cheque was accepted. That sum related to the bankruptcy debt, which Mr Osibanjo paid in order to secure the dismissal of the bankruptcy petition. It was accepted on that basis and it was used to achieve that end. In my judgment, that was not an acceptance of the balance by Seahive as rent.” (para 22)
In addition, the court held that the issue of the bankruptcy proceedings could not be treated as waiver as they had been issued before L knew of the fresh breaches, and if continuing such proceedings could be a waiver, then it would never be possible to forfeit for bankruptcy.

Mummery LJ declined to express an opinion as to whether acceptance of monies to discharge the bankruptcy debt could amount to waiver. Rix LJ went on to state, obiter, that he considered that acceptance of rent that accrued due before a fresh breach has taken place but is accepted after the breach had occurred could amount to waiver of the right to forfeit for the fresh breach. However, that problem did not arise here as the court had found that the money tendered was not accepted as rent.

Back to top

If you have found this page useful, you may be interested in the following:

Options
Free Summaries £nil
Full Membership From £207 + VAT (1 year)