Q&As

A tenant is in rent arrears and the landlord intends on withdrawing the rent deposit monies in order to offset the arrears. If the tenant fails to ‘top up’ the rent deposit account so that the landlord is entitled to forfeit the lease, is this forfeiture because of breach of covenant (so that a section 146 notice is required) or would this be forfeiture for non-payment of rent (so that, depending on the circumstances, no section 146 notice is required)?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk

Published on: 29 October 2024

It is assumed for the purpose of this query that the relevant lease is a long lease rather than an Assured Shorthold Tenancy, in respect of which the right to forfeit would not arise. It is further assumed that the tenancy is a commercial tenancy as rent deposits are unusual in respect of long residential leases.

Section 146 of the Law of Property Act 1925 (LPA 1925) provides that a right of re-entry or forfeiture is not enforceable unless and until the lessor serves a notice on the lessee specifying the breach of a provision

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Chris Bryden

Barrister, 4 King’s Bench Walk

Chris was called to the Bar in 2003 and since that time has built a busy practice across a range of areas, with an emphasis on Chancery practice. He enjoys a well-deserved reputation for his knowledge and expertise in each area. He appears regularly in the County Court, Family Court and the High Court as well as various specialist Tribunals, and has been involved in cases up to and including the Supreme Court. He regularly is instructed at Appellate level. He has extensive and wide-ranging experience particularly in the areas of wills, probate and inheritance disputes; property including adverse possession, boundary disputes and issues arising out of trusts of land; company and commercial work and financial remedies. Chris is head of the Family Group and head of the Property Team at 4KBW.

Chris is the author of numerous articles in publications such as the New Law Journal, Counsel and Family Law, amongst many other titles, and is the co-author of Social Media in the Workplace: A Handbook (2015, Jordan Publishing).