A landlord (T) appealed against the decision that a s146 notice could not be served until the contractual right of re-entry had arisen. The Court of Appeal, in a unanimous decision delivered by David Richards LJ, dismissed the appeal.
Facts and law
The Law of Property Act 1925, s146(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) in any case, requiring the lessee to make compensation in money for the breach;
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.
In Tubbs v Ruberry clause 4.17 conferred a right of re-entry and forfeiture on the landlord if the tenant commits a breach of his obligations under the tenancy and (where such breach is capable of remedy) the tenant fails to remedy any such breach within 14 days following the receipt of written notice from the landlord to remedy the same (“a Default Notice”).
On 25 February 2016, following the breach of repairing and decoration covenants, a default notice was served pursuant to clause 4.17, as well as a s146 notice. The question to be determined was whether the s146 notice could be validly served, notwithstanding that the 14 day period for remedying the specified breaches provided for in 4.17 had not passed, and the contractual right of re-entry had not arisen.
Decision
The Court of Appeal held that for a s146 notice to be validly served, the contractual right of re-entry must have arisen. As such, the s146 notice could only be served once 14 days had passed from the service of the default notice.
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