5 Proviso for Re-entry and Forfeiture
3.57 The 1995 Act dos not give the landlord a statutory right of forfeiture akin to the Cases for Possession available to the landlord under the 1986 Act. If a landlord is to have a right to forfeit a fixed term tenancy during its duration, whether for non payment of rent or for breach of other terms of the tenancy, a proviso for re-entry and forfeiture will have to be included in the tenancy agreement.
He will then be able to exercise a right of forfeiture, subject to the rules of the general law of landlord and tenant and to the tenant’s right to apply to the court for relief from forfeiture. A proviso for re-entry is implied into an equitable lease, but not into a legal lease, and it will be of the utmost importance to take an appropriately drafted proviso in the tenancy agreement. The proviso should provide for re-entry if the rent remains due and unpaid for a specified period (for instance 21 days), if the tenant becomes bankrupt, or is otherwise in breach of covenant.104 It is not possible to contract out of the tenant’s right to relief against forfeiture, and any attempt in the agreement to contract out of the tenant’s right to relief will be unenforceable.1053.58 Forfeiture will amount to termination and will entitle the tenant to claim compensation for improvements under the 1995 Act. Note that the problem encountered under the 1986 Act, where the tenant had to be given at least one months notice of forfeiture to enable him to claim compensation,106 will not arise under the 1995 Act. The 1995 Act requires the tenant to give notice of his intention to claim compensation within two months following the end of the tenancy, and not before termination (as under the 1986 Act).107 There is however, a question whether the proviso for re-entry should give the tenant sufficient time to remove fixtures before termination. The 1995 Act gives the tenant the right to remove tenant’s fixtures (whether agricultural or not) at any time during the tenancy or ‘at any time after the termination of the tenancy when he remains in possession as tenant’.108 The tenant will remain in possession as tenant when eg he holds over in possession at the end of the tenancy, but not following forfeiture. He will therefore lose his statutory right of removal upon forfeiture, and the validity of a proviso for re-entry which fails to make provision for reasonable notice to enable the tenant to exercise his right of removal must be open to doubt.109 At the very lest, given the judicial attitude to interpreting forfeiture clauses in compensation cases under the 1986 Act,110 a counsel of caution would dictate the inclusion of a reasonable notice period in the proviso for re-entry. The practical effect of failing to provide for notice of re-entry and forfeiture will, otherwise, be to negative the tenant’s statutory right of removal under section 8.