2 Forfeiture and the Agricultural Holdings Acts
7.133 The landlord’s right to forfeit under the general law is a useful alternative remedy, and may be preferred in some situations to proceeding under Case D of Sch 3 to the 1986 Act.
It has the advantage of avoiding an arbitrations available to the tenant under Case D. In rent cases it suffers from one major drawback, however, in that if the tenant pays the rent owing (with costs) into court before judgment, the court will invariably grant relief against forfeiture. Case D has the advantage that if the tenant fails to invoke an arbitration, or does so unsuccessfully, the court has no jurisdiction to grant relief against forfeiture. In the case of forfeiture for breach of covenant to repair, the remedy by way of notice to do work or notice to remedy under Case D is hedged with so many procedural requirements that, in some cases, it may be preferable to pursue forfeiture proceedings based on a proviso for re-entry. The additional procedural restrictions on forfeiture for breach of repairing covenants set out in the Leasehold Property (Repairs) Act 1938 do not apply to tenancies of an agricultural holding.295 Forfeiture under the general law can also provide a useful alternative remedy if the landlord loses his right to proceed under the 1986 Act, eg by failure to comply with the strict time limits set out in the legislation.7.134 Forfeiture pursuant to a proviso for re-entry will be a ‘termination’ of the tenancy entitling the parties to claim compensation for improvements and for dilapidations in the usual way.296 Compensation for disturbance will probably not be payable however, as the tenancy will not have been terminated by notice to quit within the meaning of s 60(1)(a) of the 1986 Act. The tenant will be able to claim for ‘high farming’ under s 70, in which case he must serve notice of his intention to do so at least one month before the end of the tenancy.297 The order for possession, when granted, terminates the tenancy on judgment and relates back to the date of service of the writ.298 The proviso for re-entry should therefore provide for at least one month’s notice of forfeiture proceedings to be given to the tenant, so that he can exercise his right to claim compensation under ss 60 and 70. If it does not do so the clause may be void as an attempt to contract out of the compensation provisions of the 1986 Act.299