Relief from forfeiture: Whether an order for possession was needed where peaceable re-entry had been exercised by a landlord (Golding v Martin – 2022)

The background

In Golding v Martin [2022], the tenant of a flat moved abroad, did not pay any service charges and the flat fell into disrepair. No forwarding address was left and the landlord obtained judgment in the First-tier Tribunal for service charge arrears. A s.146 notice was served and an order for possession granted. The landlord took possession of the flat, closed the Land Registry title and a new lease granted.

Later, the tenant became aware of the forfeiture of her original lease. Rather than applying for relief from forfeiture, her application requested that the order for possession was set aside. The claim was successful as the Court of Appeal found that the possession order had not been made in the form set down by the County Courts Act 1984. The landlord later served a defence and counterclaim on the grounds that the tenant had waived her right to apply for relief from forfeiture.

The decision

The County Court found that the landlord had acted in accordance with the terms of the lease, holding that the landlord did not require an order for possession following lawful peaceable re-entry.

Where a property is empty, the Protection From Eviction Act 1977 does not apply and forfeiture may be exercised by peaceable re-entry. The Court found that the landlord had effected forfeiture by taking possession, stating that this was the case whether the landlord forfeited pursuant to an order possession or by peaceable re-entry.

The tenant argued that a possession order must be granted, with possession deferred for 4 weeks to enable her to clear the arrears and costs. The Court, however, agreed with the landlord that a possession order was not necessary; the landlord did not seek such an order and the tenant was unable to comply with it 5 years following peaceable re-entry and termination of the lease. The tenant had been too late in her application for relief from forfeiture and the landlord had acted fairly.

Advice and action for landlords

A reassuring decision for the landlord in this case, finding that peaceable re-entry of vacant premises was lawful without a need for a possession order. The tenant had vacated the premises, moved abroad and left no forwarding correspondence address and although the possession order had been made in the wrong form, this did not prejudice the landlord’s right to peaceable re-entry.

The tenant’s relief from forfeiture application had been made too late, and no damages were payable.