Nick Grundy QC successfully represented Marilyn Ruberry in the Court of Appeal in Toms v Ruberry on what is now the leading case concerning the time at which a landlord can serve a section 146 Notice as a precursor to forfeiture.

12th February 2019

The Law of Property Act 1925, ss. 146(1) provides:

A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice-
(a) specifying the particular breach complained of; and
(b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and
(c) …
and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach

Under some leases it is the case that the landlord’s right of re-entry does not arise until the tenant has been in breach of a particular condition for a certain period of time. It is not explicit from these provisions whether a S 146 Notice can be served as soon as the breach of covenant which may in due course give the landlord a right of e-entry has arisen or whether the landlord has to wait until the right of re-entry has accrued; i.e. is the reference to a ‘right of re-entry’ a reference to an accrued right or a nascent right?

This issue had not been determined by an appellate court notwithstanding that a provision in the form of that in s. 146(1) has been on the statute book since 1881.

Accepting Nick’s analysis, the Court of Appeal decided that the landlord’s right to re-enter has to have accrued before it can serve a valid notice to quit.

Please click here for a link to the judgement.