Forfeiture: remediable and irremediable breaches

Before considering remediable and irremediable breaches, it is useful to distinguish them from continuing and once-and-for-all breaches, a distinction which often gives rise to confusion. A remediable breach is one which may be put right; for example, the non-payment of rent may be remedied by paying the rent along with any interest to compensate for late payment. Sub-letting, however, is an irremediable breach, as the determination of the sub-tenancy is out of the tenant’s hands: the tenant must wait until the end of the sub-term, however that may be brought about.  A once-and-for-all breach, when it is committed, is done and complete. For example, in contravention of covenant against structural alterations, a load-bearing wall is removed: on Monday, the wall is present; on Tuesday it is not; the breach is complete and finished. Whereas a continuing breach goes on from day to day until it is remedied. For example, failure to decorate: on Monday, the flat is undecorated; on Tuesday, it continues to be undecorated; and on Wednesday, until it is actually decorated. While there is an interplay between the two, they are very much distinct. The authorities suggest: failure to pay rent is a once-and-for-all breach, which may be remedied by payment; sub-letting is a once-and-for-all breach, which is incapable of remedy; sharing possession is a continuing breach, which is capable of remedy by cessation; immoral user may be a continuing breach from day to day, but may be incapable of remedy, due to any lasting stigma. It is identifying whether a breach is continuing or once-and-for-all that is crucial in determining whether there has been a waiver of the right to forfeit. Despite some of the decisions and the commentary, the reason is quite simple: if it is a once-and-for-all breach and the landlord waives, the landlord can no longer forfeit for that breach; if, however, it is a continuing breach, it persists after, and despite, the landlord’s waiver, so the landlord may still forfeit, until such time as the breach ceases and the landlord subsequently waives the right to forfeit. Although the ability to remedy a breach may be indicative of whether it is a once-and-for-all breach, and vice versa, it does not play a part in determining whether a landlord may still forfeit after waiving the right so to do. Remediable and irremediable breaches Whether a breach is remediable or not comes to the fore in respect of notices served under section 146 of the Law of Property Act 1925, in two respects: first, if a breach is capable of remedy, the notice must require it to be remedied; and, secondly, it requires that the tenant be given a reasonable period of time in order to take advice and, if it is capable of remedy, to remedy the breach before any further action is taken. Even if the breach is irremediable, tenants must be afforded enough time to take advice and consider their position; but as no amount of time, reasonable or otherwise, will result in the remedying of an irremediable breach, a reasonable amount of time is likely to be limited. Fourteen days was found to be sufficient in Civil Service Cooperative Society Ltd v McGrigor’s Trustee [1923] 2 Ch 347.  The need to expressly identify whether a breach is remediable has been mitigated by use of stock phraseology, such as the tenant is “required to remedy the breach, if it is capable of being remedied” (Telchadder v Wickland (Holdings) Ltd [2014] UKSC 57; [2015] EGLR 9). But one still needs to identify what is a reasonable passage of time before re-entering. If a landlord precipitously re-enters, in the mistaken belief that the breach is irremediable, that re-entry will be unlawful. Whether a breach is capable of remedy, therefore, remains of importance. If one were to be pedantic, which lawyers are wont to be, it might be said that no breach is capable of remedy. For example, if rent is payable on the 1st of the month and the rent is not paid on 1 June 2022, it will never be capable of being paid on 1 June 2022, the date having passed and, therefore, incapable of remedy. However, for practical purposes, if that rent is paid on 20 June 2022, along with any interest to ensure the landlord is in no worse a position, an effective remedy will have been provided. In the words of Staughton LJ, the mischief caused by the breach has been removed (Savva v Hussein [1996] 2 EGLR 65).  Historically, there has been debate as to whether the breach of a negative covenant could ever be remedied, and there have been categories of breach which have been considered irremediable. As recognised in Telchadder, the distinctions between the breach of negative and positive covenants, and the historical categories of remediable and irremediable breaches, have not stood the test of time. Rather, one needs to adopt the approach of Staughton LJ and consider whether the mischief caused can be cured. With that in mind, rather than rigidly categorising covenants, the breach of which are either remediable or irremediable, it is suggested that breaches may be sensibly classified as those which: inevitably puts the remedy beyond the control of the tenant, making them irremediable; are plainly remediable by the tenant; and may or may not be remediable, depending on the mischief caused. What is reasonable? Hopefully, the foregoing demonstrates that there are very limited circumstances in which a landlord can lawfully re-enter, without giving the tenant a reasonable amount of time to remedy a breach. Section 146 does not require that the amount of time be specified in the notice or how the tenant is to remedy any breach. What is a reasonable amount of time is a matter of fact and degree, regardless of whether the breach is remediable or not: a failure to clean windows can be remedied in a matter of weeks; a failure to paint window frames will take longer; the replacement of window frames will take even longer. In the case of substantial repair, recourse to a surveyor may be necessary to determine what is likely to be a reasonable time. How the tenant remedies the breach is a matter for the tenant, as long as it is remedied within a reasonable time. Even in the case of an irremediable breach, the more complicated the legal issues, the more time the tenant will need to consider its options. Of course, if the tenant, by its actions, makes it clear that it has no intention of remedying a remediable breach, but is committing further breaches, a reasonable time may be taken to have elapsed (Billson v Residential Apartments Ltd [1991] 1 EGLR 70). When considering how much, if any, time to give a tenant before re-entering, after the service of a section 146 notice, the prudent landlord will err on the side of caution. Useful examples Irremediable breaches Breach of a covenant not to assign or underlet without consent, as the tenant has put any remedy out of his own power. Remediable breaches Non-payment of rent, service charge or suchlike, when payment can be made with compensatory interest. Failure to repair, where the repairs can be undertaken. Use contrary to a restrictive use covenant. Hybrid breaches Illegal or immoral user, depending on the stigma attached to the premises or the damage done to the landlord’s reversion. Unauthorised alterations, depending on whether they can be undone. Failure to carry out works within a specified time, depending on the impact of missing the deadline. Jamal Demachkie and Peter Petts are barristers at Gatehouse Chambers. This article is based on chapters from Forfeiture of Leases (Petts P and Demachkie J, Law Society Publishing, 2021). Image © Kenny Eliason/Unsplash