The High Court has reviewed the requirements for forfeiting a lease in Cumbria Zoo Company Limited v The Zoo Investment Company Limited [2022] EWHC 3379 (Ch), a case which underlines the importance of complying with lease requirements if there is to be a valid forfeiture.
The claimant operated the Cumbria Safari Zoo, which it acquired in 2013. The former owners held the freehold of the site of the zoo, in Dalton-in-Furness, Cumbria, and in February 2018 they leased it to the claimant on two leases for a term of eight years.
The leases reserved the right for the landlord to enter the property – defined as the land itself – for any purpose mentioned or connected with the lease and “the landlord’s interest in the property”, which could be exercised by anyone authorised by the landlord.
The tenant was required to allow all those so entitled to enter the property at any reasonable time and after having given reasonable notice to the tenant. In January 2021, the defendant acquired the freehold property interests.
A bitter dispute arose between the parties concerning the ownership and whereabouts of certain assets including a “Thomas 2 steam engine” loaned by the former owners to the claimant under a service agreement. The defendant claimed to be the assignee of the former owners’ rights under such agreement. It gave five days’ written notice of its intention to collect from the property all its equipment under the service agreement, although there was a dispute as to what that comprised.
The defendant attended the property on 29 April 2021 but was refused access. It was then agreed that access would be given on 6 May 2021 at 2pm. The defendant’s representatives attended the property at 9am on that date when access was, again, refused.
The defendant then served notices under section 146 of the Law of Property Act 1925 citing breaches of the lease requirements to give access on reasonable notice on both occasions. It then re-entered the premises purporting to exercise its right of peaceable re-entry. The claimant immediately obtained an injunction restoring it to possession of the property pending determination of preliminary issues as to whether or not the leases had been validly forfeited.
The court decided that the request for access on 29 April 2021 was made at a reasonable time and with reasonable notice. However, the access sought was for the purpose of collecting chattels and the court saw no basis for interpreting the term “the landlord’s interest in the property” as encompassing the inspection and/or removal of chattels left by the previous landlord for use under a services agreement. The refusal of access for such a purpose was not a breach of the lease.
The defendant’s original request for access on 6 May 2021 under specified terms of the lease was also made for a reasonable time and with reasonable notice and was agreed. The subsequent request, made by turning up at 9am instead of the agreed time of 2pm was not on reasonable notice. Consequently, the refusal of access at 9am was also not a breach of the lease.
Louise Clark is a property law consultant and mediator
