In this Update John Bryant considers two cases which deal with the tragic circumstances in which the Forfeiture Rule applies, Richard Cherry reports on Court of Appeal’s first encounter with the requirement that a landlord who wants to serve a section 21 notice must have given the tenant a gas safety check record.
Zachary Bredemear’s review of recent landlord and tenant decisions includes a decision on what is required to show a tenant permitted or suffered a flat to be used as a brothel and a decision on the scope of a landlord’s right of entry, and Chris Pask looks at how the Covid -19 provisions in the Corporate Insolvency and Governance Bill influenced winding up petitions before it was even in force.
The careful reader will also find a Court of Appeal authority supporting judicial internet searches.
Death and the Forfeiture Rule – Amos v. Mancini  EWHC 1063 (Ch) & Challen v. Challen  EWHC 1330 (Ch)
The Forfeiture Rule
It is a well-known principle of public policy that a person should not benefit from his or her criminal activity. As Fry L.J. put it in Cleaver v Mutual Reserve Fund Life Association  1 QB 147 at 156:
“…no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person…This principle of public policy, like all such principles, must be applied to all cases to which it can be applied without reference to the particular character of the right asserted or the form of its assertion.”
Gas Safety Records and Possession Proceedings: Trecarrell House Limited V Rouncefield  EWCA Civ 760
Richard Cherry of 1 Chancery Lane appeared for the Respondent. A fuller note of Richard’s analysis of the Court of Appeal’s decision can be found here
- Key facts – an AST tenant was not given the last Gas Safety Record (‘GSR’) before occupation but was given it before service of the s21 Notice. The subsequent GSR was a record of a check made more than 12 months after the previous one.
- The Court faced two questions:
The First Question
Does failure to give a tenant a copy of a Gas Safety Record (‘GSR’) before the tenant begins to occupy as required by Reg 36(6)(b) of the Gas Safety (Installation and Use) Regulations 1998 (‘the Regulations’) preclude reliance on a section 21 notice?
Forfeiting a lease for “Permitting or suffering” and immoral use: Marchitelli v 15 Westgate Terrace Ltd  UKUT 192 (LC)
Many flats held under long leases are not occupied by the headlessee but someone occupying under a sub-tenancy. This arrangement can give rise to difficulties enforcing the terms of the headlease that prohibit the headlessee from “permitting” or “suffering” certain conduct to occur in the flat.
Marchitelli v 15 Westgate Terrace Ltd  UKUT 192 (LC) provides a good illustration of the problem.
Ms Marchitelli owned a 999 year headlease which included a restriction on the lessee in the following terms:
“Not to do or permit or suffer in or upon the Demised Premises or any part thereof any illegal or immoral act or any act or thing which may be or may become a nuisance or annoyance or cause damage to the Lessors or the tenants of the Lessor or the occupiers of any part of the Building.”
Interpretation of landlord’s right of entry: Rees v Earl of Plymouth  EWCA Civ 816
Sometimes a judgment blows away the smoke produced by generations of lawyers and leaves the legal landscape a little bit clearer. The judgment of Lewison LJ in Rees v Earl of Plymouth is one of those occasions.
The case concerned a landlord who wished to enter farmland for the purposes of carrying out surveys, including a bat survey, required to comply with conditions attached to an outline planning permission for a large housing development. The tenant objected to the landlord leaving remote bat detectors and surveyors’ marking pins on the farm.
The Fate of Winding Up Petitions – Re: A Company (Injunction to Restrain Presentation of Petition)  EWHC 1406 (Ch)
On 1 June 2020, Morgan J granted ex parte application to restrain the presentation of a winding up petition by a landlord of its tenant company, a high street retailer.
The judgment can be read here.
The tenant had been required to close the premises from which it traded in accordance with the instructions from the Government in response to the Covid-19 pandemic. This resulted in a failure to pay rent and service charges.