Discussion! Forfeiture and Assured Tenancies

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

You've quoted my original post three times.

The first quote is an accurate quote but the other two have been edited or had additional information added by you which gives the false impression that they were my original words.

Would you be kind enough to edit your post (perhaps in a different colour?) to make things clearer.

Di

I used quotation marks to separate your text from mine or other sources.

- - - Updated - - -

I've now had the time to read all through your above post (and associated posts) and the link you provided to Landmark Chambers' view on "Forfeiture" within it.

What you (and Landmark Chambers) are saying specifically relates to Freeholder and Leaseholder legal issues not rental agreements. Point 14 (Landmark Chambers) notes that none of the advice relates to Assured Tenancies. The OP has an Assured Tenancy.

The focus of the advice is on commercial leases not residential ones. Albeit there's a legal nod towards residential leases over 21 years (at the outset).

I can see how it could be confusing because of the legal vocabulary which refers to a Freeholder as a "Landlord" and a Leaseholder as a "Tenant" but the legal remedies for breaches are miles apart from Landlord/Tenant issues in the rented sector.

The bottom line is "Forfeiture" does not apply to rented properties - it only applies to Freeholder/Lessee situations.

Di

Di you state this: "The bottom line is "Forfeiture" does not apply to rented properties - it only applies to Freeholder/Lessee situations."

How does one define rented property? It is an interest in land is limited to either via ownership or a leasehold (section 1 (1 (b), LPA1925, or Assured Tenancy (Housing Act 1988) In any event, an Assured Tenancy isof sorts a protected Leasehold - as an interest/ right in land as aforementioned can only be a either ownership, ie fee simple in possession or leasehold, ie terms of years absolute. Forfeiture as above, relates to the landlord ending a terms of years absolute whether it's commercial, private, or state leasehold.

A forfeiture relates to landlord remedies in leases to end the land law agreement (contract)/ ie the tenancy agreement, owing to non payment of rent. So, it applies to leases - which can be construed as 'renting an estate in land.'

It apparently does not apply to assured tenancies but which begs the question why the landlord was given possession albeit a suspended possession of the interest in Ms Andrist's land. So, inferentially Ms Andrist has a statutory protected terms of years absolute given she can alternatively have ownership rights albeit the landlord has the free simple, meaning she has the leasehold/ terms of years absolute. Ms Andrist, did you incidentally protect your interest in land on the property's land register?

[Diana M]

Re: Suing the Council for wrongful prosecution.

It apparently does not apply to assured tenancies but which begs the question why the landlord was given possession albeit a suspended possession of the interest in Ms Andrist's land. So, inferentially Ms Andrist has a statutory protected terms of years absolute given she can alternatively have ownership rights albeit the landlord has the free simple, meaning she has the leasehold/ terms of years absolute. Ms Andrist, did you incidentally protect your interest in land on the property's land register?

So we are in agreement that forfeiture does not apply to Assured Tenancies which is the OP's situation.

Di

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

So we are in agreement that forfeiture does not apply to Assured Tenancies which is the OP's situation.

Di

Technically no, as by inference an Assured Tenancy in the legal sense is clearly a leasehold/ terms of years absolute (albeit statutory protected) as the only other interest in land is 'actual ownership/ fee simple in possession. However, the landlord's remedy to forfeiture (end the leasehold/ terms of years absolute) 'appears' to be restricted for Assured Tenancies type Terms of years absolute (ie limited to a period). There's still a problem with an Assured Tenancy if the landlord can end the Assured Tenancy which resulted in a Possession Order (although suspended), which is the same remedy for a landlord where there is no statutory protected leasehold (Assured Tenancy, by inference).

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

So we are in agreement that forfeiture does not apply to Assured Tenancies which is the OP's situation.

Di

Legal jargon aside, the landlord has attempted to end the tenancy for non payment of rent, which is their legal right normally (ie breach of covenant). However, this is an assured tenancy and the result was that the tenancy has resulted in an Order of Possession (suspended). The law however for a landlord to end the tenancy (forfeiture) is a clause in the covenant terms (called a forfeiture clause). Without it the landlord cannot end a normal tenancy never mind a statutory protected one (Assured Tenancy). Even if there were a forfeiture clause if the OP's rent was still being taken it would be the landlord cancelling their forfeiture rights, ie they impliedly cancelled the right to end the protected lease.

[Diana M]

Re: Suing the Council for wrongful prosecution.

So we are in agreement that forfeiture does not apply to Assured Tenancies which is the OP's situation.

Di

So if we are not in agreement that forfeiture doesn't apply to Assured Tenacies can we at least agree that this distraction may not be helping the OP deal with their current issue, and get back to the matter in hand.

Di

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

So if we are not in agreement that forfeiture doesn't apply to Assured Tenacies can we at least agree that this distraction may not be helping the OP deal with their current issue, and get back to the matter in hand.

Di

No Di, I cannot agree with you at all - it is legally beneficial to the current issue. It is complex but this comes from legal practice of a property law barrister. This stuff is advising the landlord how to protect themselves so they can end leaseholds/ protected leaseholds by law.

The following comes from Yates, K (2014), Nuts and Bolts: Possession Claims; A Beginner's Guide to Forfeiture, Landmark Chambers (property law barrister). This woman likely acts as a barrister for the major landlords/ Housing Associations.

Yates at para 1: "‘Forfeiture’ is a term familiar to any property lawyer, but it belies a subject area that is vast and complex; most of which complexity arises before you even set foot in the County Court door to issue your claim (or, as is the case now, before you send it in exasperation to Northampton, only for it to be lost for some time, and eventually sent to the appropriate County Court centre).

Yates at para 2: This paper is a therefore high-level introduction to the amount of thought and preparation that goes into bringing a claim to forfeit a lease. Each of the sub-headings in this paper could easily form the subject of a talk in its own right; and some of them will indeed do so in Chambers’ forthcoming Forfeiture for the Faint-Hearted seminar (February 2015). Before embarking on that level of detail, what follows is an overview of the ‘nuts and bolts’, focussing on (a) the essential legal concepts and (b) the main procedural hurdles."

Yates, K. (2014), at para. 10, page 5 states immediately underneath her heading

"Waiver of the right to forfeit"

....There are lots of ways in which a landlord can act so as to appear to affirm the continuation of the lease. It follows that there are many and varied ways in which a landlord might waive the right to forfeit, but classic examples include:

Yates cites case law examples of when a landlord has lost the right to end the tenancy through the forfeiture remedy, ie Demanding rent when the landlord knows the tenant has breached their covenant, ie not paying their rent: Segal Securities Ltd v Thoseby [1963] 1 AB 887, David Blackstone Ltd v Burnetts (West End) Ltd [1973] 1 WLR 1487, as endorsed in Expert Clothing Service & Sales Ltd v Hillgate House Ltd [1986] Ch 340, CA, and Thomas v Ken Thomas Ltd [2006] EWCA Civ 1504."

Yates also provides also other situations where the landlord loses their right to end the tenancy, ie Accepting rent also waivers the landlord's right to forfeiture when the tenant has breached their covenant (ie not paid their rent): Oak Property Co Ltd v Chapman [1947] KB 886, CA (as to which, see Osibanjo v Seahive Investments [2008] EWCA Civ 1282, at [31] – [32], per Rix LJ."

http://www.landmarkchambers.co.uk/us...ber%202014.pdf

[Diana M]

Re: Suing the Council for wrongful prosecution.

No Di, I cannot agree with you at all

So I have noticed

But it's hard to argue with you sensibly when you regularly go back and edit your posts after I have commented on their content.

Di

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

So I have noticed

But it's hard to argue with you sensibly when you regularly go back and edit your posts after I have commented on their content.

Di

What I have said about 'forfeiture' is not rocket science it's basic for the land law (property law) aspect of the LLB module on the degree. This stuff though from the property barrister is saying it's not just pure law (academic law), it's actually practice too. If the Op has broken the covenant for rent then where the landlord still tried to claim the rent, stops them from ending the statutory lease, ie Assured tenancy). Is this soo difficult to understand?

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

So I have noticed

But it's hard to argue with you sensibly when you regularly go back and edit your posts after I have commented on their content.

Di

I amended the post because it was confusing because it is was difficult to explain. I also amend text too to save space on the thread, for its efficient use. I quoted you 3 times so I removed it - I also amended when I cited your text as it was confusing and, as you said, may have implied you said something where you did not.

[Diana M]

Re: Suing the Council for wrongful prosecution.

If the Op has broken the covenant for rent then where the landlord still tried to claim the rent, stops them from ending the statutory lease, ie Assured tenancy). Is this soo difficult to understand?

No Comment

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

No Comment

I mean the legal concept of forfeiture, ie is this topic not logical, or not common sense? I meant no inference to your ability per se and simply wouldn't do that to anyone. Apologies if you construed it that way. Look, property law is not easy but the law for covenants/ lease/ forfeiture is well documented, and well regulated in historic and recent case law. The problem is these defences are not likely to be used at the County Court via tenants such as the Op - but barristers clearly would and clearly do.

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

OL,...... I do not understand the concept of 'forfeiture' and Di has stated that it does not apply to me?
On point no 2) I received a letter dated AFTER the Section 8 had been served (which I mentioned earlier in the thread) which states:
'Any further payments following issue of proceedings are accepted only of payment of monies for use and occupation of premises and NOT by way of rent'

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

OL,...... I do not understand the concept of 'forfeiture' and Di has stated that it does not apply to me?
On point no 2) I received a letter dated AFTER the Section 8 had been served (which I mentioned earlier in the thread) which states:
'Any further payments following issue of proceedings are accepted only of payment of monies for use and occupation of premises and NOT by way of rent'

Ms Andrist,

In short - forfeit means end, so end the tenancy. Waiver the right to forfeit means 'continued lease/ Assured Tenancy.'

This to me looks like an attempt to avoid a forfeiture issue. This is saying, the landlord is giving their self the right to claim money for the interest in the property but saying this is not rent. Hmm. I don't think this clause is legal as the court and the landlord knows fully well that this is rent in effect as it's not 'gratis' (ie free). "....Payment of monies for use and occupation of premises" = by definition rent/ charges for use of property.

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

Unfortunately the LL cannot even lie in bed straight...and is constantly misrepresenting his/their authority....and even getting a Solicitor to write those words in a letter seems suspect to me!

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

Unfortunately the LL cannot even lie in bed straight...and is constantly misrepresenting his/their authority....and even getting a Solicitor to write those words in a letter seems suspect to me!

You could appeal to the High Court, where this court could overturn the County Court's decision. It's simply unfair in my view to give the LL an Order of Possession (suspended). It may well be, you'll be ok if you keep paying your rent. You only have 21 days anyway to appeal any decision normally anyway. If the LL tries to evict you again, you have the option to appeal. The High Court is more likely to observe the law and be well versed with forfeiture issues than the general local judge. I think you had a good case to appeal., it's a shame really.