Breach of repairing covenants — Notices under section 146 of the Law of Property Act 1925 — Demand and receipt of rent after notices — Whether forfeiture waived — Whether condition of premises changed — Appeal by tenant dismissed
The appellants, Discreet Selling Estates Ltd, held seven 99-year leases of several houses (“the premises”) at Well Hall Road, Woolwich, from the respondent local authority; the premises were sublet to residential occupiers. Under the leases the appellants covenanted to maintain and keep the premises in good and substantial repair; there were provisos for re-entry. In July 1983 the respondents served notices on the appellants under section 146 of the Law of Property Act 1925 alleging breaches of the covenants to repair and requiring that the breaches be remedied. Leave to take proceedings was given pursuant to the Leasehold Property (Repairs) Act 1938 in January 1985. Meanwhile, the ground rents for the premises were demanded and received by the respondents until March 25 1985. In April 1985 the respondents issued summonses seeking possession of the premises.
On November 1 1988 His Honour Judge Fox-Andrews QC, an official referee, made an order for possession and refused to grant relief from forfeiture. The appellants appealed contending (1) that a notice under section 146 was invalid if it described itself as “interim”; and (2) there had been waiver by the demand and receipt of rent after the original notice had been served.
Held The appeal was dismissed.
1. A notice under section 146 is valid if it asserts defects which are relied on notwithstanding that it in terms reserves the rights of the landlord in respect of defects which might exist and have not been detailed: see Fox v Jolly [1916] 1 AC 1.
2. On the facts as found by the trial judge there was no improvement in the condition of the premises between the date of the notices and the proceedings and all the defects the subject of the notices still subsisted. There was no need for further notices following the acceptance of rent where the condition of the premises worsened. All that is waived is the right to forfeiture not the breach and accordingly in the case of a continuing breach a right to forfeiture arises afresh each day and can be exercised. A notice under section 146 asserts not only that the tenant is in breach but also that he will continue to be in breach.
Penton v Barnett [1898] 1 QB 276 followed.
Martin Mann QC and Stephen Rubin (instructed by Druces & Attlee) appeared for the appellants; and John Colyer QC and Colin Braham (instructed by the solicitor Greenwich London Borough Council) appeared for the respondents.
