Breach of Covenant

Information for landlords who are in need of advice in relation to breaches of the tenancy agreement.

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Any landlord or tenant should be aware of the covenants entered into which form a binding part of any lease or tenancy agreement.

Breaches of the tenancy agreement, also known as breach of covenant claims, are more usually taken by the landlord against the tenant and can include circumstances such as failure to pay the rent, sub-letting without permission or carrying out unauthorised alterations.

A landlord may be equally guilty of breaching covenants if they fail to meet their obligations contained in the lease such as wrongly withholding or delaying consent for assignment, subletting or alterations, breach of 'quiet enjoyment' (the tenant's right to live in and use the rented property without unwarranted interference from the landlord) or a failure to insure the property.

A landlord of a commercial property can decide to bring the lease to an end (known as forfeiture) or continue the lease and seek to recover arrears via a claim for damages or getting a court order to compel the tenant to comply with the lease terms. Options are more limited and often more complex when dealing with tenants in residential property.

When dealing with a breach of covenant, Access Legal can provide the practical and commercially sound legal advice to achieve the desired result. There are many remedies available in law to landlords in these circumstances, but it's often more important to find the solution that actually works rather than the course of action that's strictly legally prescribed.

I want to know

Can I (as landlord of the property) go into the property without the permission of the tenant?

A landlord may be guilty of breaching covenants if they fail to meet their obligations contained in the lease such as breach of 'quiet enjoyment' (the tenant's right to live in and use the rented property without unwarranted interference from the landlord)

We would always advise that landlords gain the written permission of the tenant to enter premises. If landlords wish to do an inspection of a property, it is important that the landlord provides the tenant with notice of the inspection well before it takes place. If the tenant objects to the inspection then it cannot proceed.

Even if the agreement between the parties states that landlords can enter the property (for instance to inspect or show future prospective tenants around) these inspections can only proceed with the consent of the tenant.

How can I get my property back?

In order to get a tenant out and your property back it is necessary to serve a notice. Only when the notice has been properly completed, served on the tenant and expired can we look to progress this matter on your behalf. For us to progress the matter we will need to issue court proceedings in the county court.

Court proceedings are necessary before a tenant can be lawfully removed from a property. Only a County Court Bailiff or a High Court Enforcement Officer (HCEO's) can lawfully remove a tenant from a property. Bailiffs or HCEO's can only be appointed once a county court has ordered that the tenant give the property back to the landlord.

The court will generally allow 14 days for a tenant to give up possession of a property (though it can sometimes be as much as 42 days). Only when the period specified in the order has expired can the bailiff or HCEO be instructed.

A landlord of a commercial property faced with a defaulting tenant for example can decide to bring the lease to an end (known as forfeiture) or continue the lease and seek to recover arrears via a claim for damages or getting a court order to compel the tenant to comply with the lease terms. Options are more limited and often more complex when dealing with tenants in residential property.

I have a problem tenant. What should I do?

A landlord of a property faced with a defaulting tenant should consider serving a notice on the tenant. A tenant would be 'defaulting' if they failed to pay their rent.

The law relating to notices changed extensively in 2015. Consequently we would always advise clients to use the services of a solicitor when drafting notices. The most common reason for the failure of proceedings in the county court is invalid notices.

More about breach of covenants

Both landlords and tenants should be aware of the covenants which form a binding part of any lease or tenancy agreement. The landlord and the tenant will agree their rights and responsibilities within the tenancy agreement. These rights and responsibilities form the covenants of the agreement.

Disputes can then arise where one party fails to perform on the responsibilities. This may give the other party to the agreement the right to bring proceedings in the county court.

It is quite common however for a tenant who has been accused of breaching a covenant (say non-payment of rent) to defend such a claim and make a counterclaim against the landlord.

Such counterclaims can be for failure to properly attend to the deposit, failure to properly compile and serve the Prescribed Information, harassment or allowing the property to suffer dilapidation in spite of repeated tenant requests for repairs.

Breach of covenant claims are more usually taken by the landlord against the tenant and can include circumstances such as failure to pay the rent, sub-letting without permission, carrying out unauthorised alterations, failure to repair or maintain as required (dilapidations) or becoming insolvent.

A landlord may be equally guilty of breaching covenants if they fail to meet their obligations contained in the lease such as wrongly withholding or delaying consent for assignment, subletting or alterations, breach of 'quiet enjoyment' (the tenant's right to live in and use the rented property without unwarranted interference from the landlord) or a failure to insure the property.

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