According to Bray (2008, p421) and Clarke and Greer (2008, p146), the landlord is permitted to enforce the remedy of distress without court proceedings. S/he can enter the premises and seize the value of goods (excluding certain items such as clothes and bedding) equivalent to the outstanding debt of rent. This practice has ancient origins and was once frequently used by landlords. Although still in existence, the Law Commission has recommended its abolition, since it has serious implications in terms of human rights. These days, landlords are more likely to employ the services of a bailiff to seize goods on their behalf. Forfeiture can also be used to remedy non-payment of rent. This gives the landlord the right to re-enter the property and recover the lease and s/he has two options which are physical re-entry or service of proceedings against the tenant. Bray (2008, p421) Today, physical re-entry is discouraged, even where it is peaceable and the case of Billson v Residential Apartments Ltd (1992) 1 AC 494, cited in Bray (2008) exemplifies this. In this case, the landlord broke into his premises and changed the locks, leaving the tenant notice that the lease had been forfeited. The House of Lords expressed its disapproval and suggested that the landlord should have served a writ upon the tenant. Bray (2008, p421)
As documented by the Judicial Studies Board (2008), in terms of Court action, the Housing Act 1988 provides three distinct grounds - 8, 10 and 11 - for landlords to recover possession based on rent arrears. Ground 8 of the 1988 Act is invoked when it is proven that the tenant owed at least two months rent (in the case of a monthly tenancy) or eight weeks (in the case of a weekly tenancy), when the landlord served notice for possession and the tenant still owes two months' rent (or eight weeks) at the date of the court hearing. In respect of Ground 10, a landlord must prove that there were rent arrears both at the date when proceedings were begun and also when the notice was served. With Ground 11, even if there are no arrears on the date when possession proceedings are issued, persistent delay in paying rent which is due is a ground for possession. ( Possession proceedings (2008) )
Ground 8 is mandatory and if proven, the courts must grant possession. However, if the tenant has repaid part or all of the arrears, then ground 8 can no longer be proven and the court action must be withdrawn. In order to achieve a successful outcome therefore, landlords will often cite all three grounds 8 (mandatory), 10 and 11 (discretionary, where the courts will order possession if it is ‘reasonable’ to do so). ( The Housing Act 1988, (2008) )
The Judicial Studies Board (2008) states that the Court must make an outright order for possession if ground 8 is satisfied, even if housing benefit is owed by the local authority. The Board illustrates this in the case of Marath v MacGillivray (1996) 28 HLR 484, CA, where the local authority paid benefit after the court hearing so that the arrears of rent were reduced below the Ground 8 threshold. (Possession proceedings (2008) )
The business magazine Propertyweek.com (2007) reported the interesting and significant case of Reichman v Beveridge (2006) EWCA Civ 1659. This case illustrates that a tenant is expected to pay rent for the duration of the lease, despite the fact that s/he has vacated the premises. The defendant, a law firm Beveridge Gauntlett rented a premises in Hampshire under a five year lease from January 2000. It vacated the premises in February 2003 and paid no further rent. The defendant maintained that a party suffering loss because of a breach by another party should take steps to mitigate its loss. The defendant therefore contended that Reichman should have taken steps to re-let the abandoned property. The Court of Appeal rejected this defence stating that there is no principle of contract law that states an innocent party has to accept the actions of a guilty party in having terminated the contract. The tenant failed to prove that the landlord had acted “wholly unreasonably”. The clear message in this case is that tenants who no longer occupy or require the premises are legally bound to pay rent for the duration of the lease and cannot force the landlord to take back the premises before the end of the contract. ( Case news (2007) )
There can be circumstances however, where the court has found in favour of the tenant and where arrears of rent are not complete and comprehensive grounds for granting possession. District Judge Paul Atkinson (2007) in his presentation entitled ‘Non-Payment Possession Claims’ highlighted the case of WRVS Housing Society v Blair (1987) 19 HLR 104, CA. The defendant, Blair, had a secure tenancy and had lived in the property for seven years. Unfortunately Blair developed a psychiatric illness and failed to manage his affairs, so he fell into arrears with his rent. Although he received supplementary benefit towards the rent, he spent this on food and his rent arrears mounted. At the time of the Court case, there were arrears of £1198 and the Judge ordered that possession be suspended for two months to allow for the debt to be cleared. However, the Court of Appeal set aside the order, because the Judge failed to consider the question of ‘reasonableness’ and the available welfare benefits. The case was sent back for reconsideration to determine “…more fully the benefits which could be obtained from DHSS in relation to arrears and more generally in relation to (the tenant’s) condition.” Judge Dillon stated “…It is well known that arrangements can be made with DHSS when housing benefit is payable to see that the rent is paid direct to the landlord and I feel that is a matter which should have been taken into account.” In all the circumstances of this case, the Appeal Judge did not consider that it was ‘reasonable’ to evict the tenant, despite the fact it was proven that he had failed to pay his rent. ( Non-Payment Possession Claims (2007) )
District Judge Paul Atkinson (2007) cited another example to illustrate the Judge’s discretion of ‘reasonableness’ as in the case of Woodspring District Council v Taylor (1982) 4 HLR 95,CA, where the defendants had been good tenants of the Council for 24 years. Mr. Taylor was made redundant; Mrs Taylor became ill and they fell into arrears of rent. At the start of Court proceedings they owed £557 and at the start of the hearing the outstanding debt was £700. By this time, they were receiving housing benefit and the DHSS were paying the current rent plus £1 per week off the arrears. In the County Court, an absolute possession order was made but the Court of Appeal set aside the order. Judge Waller stated that it was “…hard to understand a conclusion that it was reasonable to make an order turning them out of their house.” Once again, on appeal, the Judge had used the argument of ‘reasonableness’ and ruled in favour of the tenant, despite the proven non payment of rent. ( Non-Payment Possession Claims (2007) )
A tenant who has entered into a contract with a landlord, whether it is a residential or commercial tenancy, has a statutory obligation to pay the rent by the due date. If a tenant fails to pay the rent, then the landlord can make an informal arrangement with the tenant to pay off the arrears and in the residential sector, this arrangement is often beneficial. However, the landlord can also choose to evict the tenant and the specific legal procedure for repossession of the property will vary according to the type of tenancy in operation. In residential leases, the regulated (or ‘protected’) tenancy offers most protection against eviction and in commercial leases, the specific wording of the lease is crucial to the case.
The law clearly upholds that a tenant must pay the appropriate rent, so it can be argued that within the relationship of landlord and tenant, the obligation of the tenant to pay the rent due under the lease is absolute. However, as seen in the cases considered, even where a tenant has fallen into arrears with the rent and this has been proven, the facts surrounding the case will often influence the outcome and the presiding Judge does not always rule in favour of the landlord. Therefore, it can be argued that the absolute obligation of the tenant to pay the rent due under the lease is not always a completely and comprehensively accurate statement of the law.
References
Bray, J. (2008). Unlocking Land Law. London: Hodder & Stoughton
Chappelle, D. (2008). Land Law. England: Pearson and Longman
Clarke, S. Greer, S. (2008). Land Law Directions. Oxford: Oxford University Press,
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District Judge Atkinson, P. (2007) Non-Payment Possession Claims. Retrieved 18 September 2008 from
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LawDepot. (2008). Commercial Lease FAQ. Retrieved 16 September 2008 from
Martin, E. A. (2002). A Dictionary of Law. (electronic version) London: Oxford University Press. Retrieved 16 September 2008 from
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