Avon Grounds Rents Limited v Kirstie Ward
[2023] UKUT 88 (LC)
Paolo Clemente v Mindmere Limited
20 February 2024
[2024] UKUT 50 (LC)
Upper Tribunal
A landlord sued a tenant for unpaid rent in a regular court. The tenant argued that this action meant the landlord gave up their right to evict the tenant for non-payment. The judge disagreed. The landlord could still evict because their actions in court were not an admission that the tenant could stay.
Key Facts
- •Appeal against a First-tier Tribunal (FTT) decision regarding administration charges of £15,363.
- •Appellant (tenant) disputed the reasonableness and payability of service charges.
- •Landlord (respondent) initially pursued a money judgment in County Court for unpaid service charges.
- •The FTT found the service charges reasonable and payable, and also that the £15,363 in legal costs were reasonable and payable as an administration charge under the lease.
- •Appellant argued that the landlord's pursuit of a money judgment waived the right to forfeit the lease for non-payment.
Legal Principles
Waiver of the right to forfeit a lease occurs when a landlord takes action incompatible with forfeiture.
Case law and established legal principle
Under Section 81 of the Housing Act 1996, a landlord cannot forfeit a lease for unpaid service charges without a prior determination of payability by a court or tribunal.
Section 81, Housing Act 1996
A landlord can seek a money judgment in County Court for service charges as a means of obtaining the necessary determination under Section 81.
Cussens v Realreed Limited [2013] EWHC 1229 and London Borough of Tower Hamlets v Khan [2022] EWCA Civ 831
An action for damages for breach of covenant does not automatically waive the right to forfeit.
Cussens v Realreed Limited [2013] EWHC 1229
The act constituting waiver must amount to a recognition of the continued existence of the tenancy.
Woodfall, Landlord and Tenant, paragraph 17.097
Outcomes
Appeal dismissed.
Pursuing a money judgment for service charges does not waive the right to forfeit for non-payment. The landlord's actions were not incompatible with maintaining the right to forfeit.