Leasehold Reform: Time to Abandon Implied Surrender
In 1985 the Law Commission published a Reportl in which it recommended a new scheme to replace the existing law of forfeiture of tenancies. In 1994 a draft Bill to implement the recommendations, with modifications, was published.2 The purpose of this article is to consider the application of these proposals, as implemented in the draft Bill, to premises which have been abandoned by a tenant. This article will consider whether repossession of abandoned premises by a landlord should be treated as acceptance of an implied surrender of the lease or forfeiture by peaceable re-entry. Under the current law the distinction is potentially of great practical significance. For forfeiture other than for nonpayment of rent, the landlord must serve notice on the tenant under section 146 of the Law of Property Act 1925. In addition, it is possible to re-enter only by obtaining a court order.3 Moreover, a surrender operates subject to the interest of sub-lessees and mortgagees, while forfeiture destroys their interest and they must rely on the availability of relief under section 146(4). Currently, abandonment followed by repossession is likely to be interpreted as an implied surrender of the lease.4 The difficulties in this analysis will be highlighted. It will be argued that treating the lease as surrendered can at present be justified because of the obstacles in the way of relying on peaceable re-entry. It will be shown that the same difficulties will prejudice the application of the Law Commission's recommendations .