Demands for rent prior to forfeiture (and how to dispense with them)

Most leases (although by no means all) require payment of rent; this payment is usually treated as a condition, breach of which will entitle the landlord to forfeit the lease.  Nevertheless, prior to any forfeiture for non-payment of rent, the rent must of course be due and owing.  This note will explore the arcane and archaic rules on rent demands as a precursor to forfeiture.

At common law, no formal demand for rent is necessary before it becomes due; however, in order to forfeit for unpaid rent, a formal demand is required (Molineux v Molineux (1604) 79 ER 126).  There have been several centuries of case law on the requirements for a formal demand; not all of these will strike the modern practitioner as sensible:

• The demand must be made by the landlord or authorised agent, to the tenant, or in their absence, the occupier (Doe d. Brook v Brydges (1822) 2 Dow.&Ry. 29). This makes sense and causes the landlord no real difficulty

• The demand must be made at the place at which rent is to be paid under the lease (Buskin v Edmunds (1594) 78 ER 657), and on the land if no place is specified. Again, in most cases, this will mean that the demand is made on the land itself.  It seems likely that service of a demand addressed to the property will suffice.

• The demand must be made for the precise rent for the last period of payment alone. A demand for an earlier quarter’s rent (even if it is still in arrears) will render the notice bad.  It has been said that if the landlord “doth demand one penny more or less than is due… the demand is not good” (Fabian and Windsors Case (1588) 74 ER 278). The justification for this rule was held (at least in the reign of Elizabeth I, within the Court of Common Pleas) to be because “a condition which goes in defeazance of an estate [i.e. a forfeiture clause] is odious in law…[as such] no re-entry in such case shall be given, unless the demand be precisely and strictly followed” (Fabian and Windsors Case, supra).

• The demand must be made on, and not before or after, the last day for payment; and the demand must be made before sunset and the demand continued until sunset (Wood and Chivers Case (1572) 74 ER 806). In the Wood case, the Bishop of Salisbury’s receiver had attended at the property one hour before sunset to demand rent, but had the temerity to go for a stroll along a nearby lane and returned after the sun had set. This was not a valid demand as there was no continuance until sunset.

These rules, all of which remain good law, can be dispensed with.  In practice, this is done by one of two methods.  In the vast majority of leases (and virtually all written leases) the landlord can dispense with a formal demand for rent by the simple insertion of the words “whether formally demanded or not” in the context of forfeiture for unpaid rent.

Alternatively, the provisions of another archaic law (section 210 of the Common Law Procedure Act 1852) provides that a landlord will be permitted to forfeit a lease by action if the landlord has the right to re-enter for non-payment of rent, the rent is at least a half year in arrears on the date of service of possession proceedings, and either: the CRAR regime is not available to recover arrears, or there are insufficient goods on the premises to recover the arrears by using CRAR.

Thankfully for modern practitioners, these antiquated rules on demands for rent are not commonly encountered in the forfeiture context, and the drafting of modern leases will normally render compliance with these rules unnecessary.  Nevertheless, what the draftsman gives with one hand, Parliament takes away with another, and statutes now provide additional hoops for residential landlords to jump through:

By section 166 of the Commonhold and Leasehold Reform Act 2002, a tenant under a long lease of a dwelling is not liable to pay rent unless the landlord gives notice in a (cumbersome) prescribed form and, by ss.47 and 48 LTA 1987, a landlord of a dwelling must (including within any demand for rent) provide the name and address of the landlord at which notices may be served.

These additional hurdles can provide a modern-day gauntlet for the inexperienced landlord; which are perhaps testament to the continuing feeling that forfeitures (at least in the residential context) remain “odious in law”.

Jamal Demachkie