Relief from fortifture

Question 1

Wgar must the court have regard to

Answer 1

• The court must have regard to conduct of the tenant, how wilful was his or her default, how serious was the breach, what was the extent of the damage caused by the breach.

Question 2

When is a court less likely to grant relief

Answer 2

• The court is likely, where tenant does remedy the breach but not immediately, then relief is usually granted. Where the tenant has failed to remedy a breach, which is capable of being remedied, the court is unlikely to grant relief.

Question 3

Usually not granted in a immoral purpose

Answer 3

Ropemaker Properties v Noonhaven: A lease provided that premises could only be used as a high-class restaurant or night club, with a covenant prohibiting immoral use. The premises were used for an immoral purpose (prostitution). However relief could be granted as remediable as the immoral use has stopped and there was no stigma attached

Question 4

What were exceptional circumstances in rope maker

Answer 4

• Exceptional circumstances here included; the substantial loss which forfeiture would cause to the lessee (and windfall to the lessor); the fact that the immoral use had ended; the fact that there would be no lasting stigma; the fact that relief would not cause the lessor to be left with unacceptable tenants; the fact that the lessee intended to dispose of the lease. In the case the immoral use has ended and was unlikely to resume and the landlord accepted any stigma attached was likely to be shot lived. But most importantly, the lease was of significant value and forfeiture would result in significant financial loss to the tenants as it would result in an unwarranted windfall to the tenants.

Question 5

GMS Syndicate Ltd v Gary Elliott Ltd.

Answer 5

In subleased will be granted over that part only, Although no exceptional circumstances allowed relief to be granted against an immoral use, the sub-lessee occupied a distinct physical part of the premises to which there was no complain

Question 6

What is the consequence of forfeiture

Answer 6

Forfeiture will also destroy any mortgage granted over the lease hold estate. So mortgaees can apply under s 146(4) LPA. - The successful grant of their relief will lead to their sub-lease being converted into a main lease, according toEscalus Properties v Dennis [1996]

Question 7

LC proposals

Answer 7

Their focus has been mainly on the reform of forfeiture, as forfeiture gives rise to a significant number of disputes• Replace ‘forfeiture’ with a new scheme of ‘termination by tenant default’ for breaches of covenant with 2 possible methods of taking possession (though termination actions)