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The other kind of lease breach concerns that of disrepair. Waiver cannot be committed as long as the disrepair continues as the right to forfeiture will be continually recurring on a daily basis, making it ‘un-waived’ as a result.

If a freeholder does intend to forfeit in respect of disrepair, whether by peaceable re-entry (the exercise of a landlord’s right to terminate a lease by taking physical possession of the premises) or civil claim (and where the term of lease was originally granted for 7 years or more and has at least 3 years left to run), the Leasehold Property (Repairs) Act 1938 applies. Therefore the forfeiture notice must make reference to the right of the leaseholder to serve a counter notice within 28 days and providing the leaseholder the opportunity of claiming the protection of the Act which is stated in the landlord’s s146 notice.

Once the leaseholder has claimed this protection, (which he can do by letter) the freeholder has to make a preliminary claim for the court’s permission before taking any further action. The 5 alternative grounds on which the court can, in its discretion, give permission are:

  1. That immediate remedy of the disrepair is necessary in order to protect the value of the landlord’s reversion (and evidence from a valuer will be needed);
  2. That immediate remedy is needed in order to comply with a legal requirement, such as a repairs notice issued by the local authority;
  3. Where the tenant is not in occupation of the whole or part of the premises, that remedying the disrepair is required in the interests of the occupant;
  4. The cost of immediate repairs is much lower than cost of delayed remedy;
  5. Other special circumstances that would make it just and equitable to give permission.

Jervis v Harris Clause

A common device for avoiding those restrictions from the 1938 Act is to include a ‘Jervis v. Harris clause’ in a lease. This allows the landlord to enter premises and spend their own money on the necessary repairs and then claim that sum from the tenant as a debt. This can however still be difficult to enforce if access is refused because it then becomes necessary to sue for an injunction, which is a discretionary remedy. It can also be expensive to enforce and uncertain in that the tenant may dispute the need for particular repairs or defaults in payment.

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