10th October, 2013
GET YOUR S146 NOTICE RIGHT
In the recent case of Anders v Haralambous , Mr Justice Jay upheld an appeal against a decision that a lease was forfeit.
This was on the basis that the s146 notice – which is served by a landlord who wishes to commence forfeiture proceedings against a leaseholder following a breach of a lease – had not provided the correct information as to the nature of the breach, which the court had earlier adjudicated upon.
A lease of a house contained two covenants in respect of which complain was made as follows:
The first was “Not to use the premises or permit the same to be used for any purpose whatsoever other than as a self-contained private dwelling for residential purposes only.”
The second was “Not to assign, underlet or part with or share possession or occupation of part only of the premises.”
The district judge had earlier found the tenant had breached the first covenant by using the premises on a commercial basis for lodging students from the language school with which she was associated. This was not use as a private dwelling.
The section 146 notice effectively alleged that the breach was constituted by the subletting for reward.
The findings and conclusions of the district judge Hart were not that there had been a subletting but rather there had been a parting with or sharing of possession.
The judgment demonstrates yet again the importance of getting these notices right to forfeit a lease.
For more information on this or any other property matter please contact Emma McGlinchey on 01244 405567 or email [email protected]
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