If a landlord wants to forfeit a lease because the tenant has broken a covenant other than paying rent, they cannot simply change the locks or issue proceedings. They must first serve a notice under section 146 of the Law of Property Act 1925. If the notice is defective, the forfeiture will fail regardless of the seriousness of the underlying breach.
This article covers what a section 146 notice has to say, how long a tenant should be given to put things right, and how the Leasehold Property (Repairs) Act 1938 changes the picture where the complaint is about disrepair.
When section 146 applies
Section 146 applies to forfeiture for any breach of covenant or condition in a lease except non-payment of rent, which has its own separate rules. It therefore covers unauthorised alterations, subletting or assignment in breach of covenant, business use of a residential flat, nuisance, and disrepair.
Until a valid notice has been served and the tenant has had a reasonable time to respond, the landlord cannot lawfully forfeit, whether by peaceable re-entry or by court proceedings. Acting prematurely is likely to be unlawful and can expose the landlord to a claim for wrongful forfeiture, including damages for any loss the tenant suffers as a result of being shut out or dispossessed.
What the notice must contain
Section 146(1) sets out three things the notice has to do:
- Specify the particular breach complained of.
- If the breach is capable of remedy, require the tenant to remedy it.
- In any case, require the tenant to make compensation in money for the breach, if the landlord wants compensation.
The notice needs to give the tenant enough information to understand what they are being accused of and, where relevant, what they must do about it. Vague complaints will not do. For disrepair, the notice normally needs a schedule identifying the items said to be in disrepair.
Most notices include a demand for compensation as a matter of course, because a failure to ask rules out recovery through the forfeiture process. That does not guarantee compensation will actually be payable. Whether the landlord can recover depends on the terms of the lease and any applicable statutory restrictions, including those in the 1938 Act where it applies.
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Where the breach can be remedied, the tenant must be given a reasonable time to do so before the landlord moves to forfeit. The statute does not fix any particular period, and what is reasonable depends entirely on the circumstances. A failure to insure might be put right in days. Significant repair works can take months. The question is practical: how long would it reasonably take a diligent tenant to address the problem?
If the landlord acts prematurely and forfeits before a reasonable period has passed, the forfeiture is liable to be set aside even if the tenant was in breach.
Breaches capable of remedy
Not every breach can be remedied, and the notice requirements shift depending on the answer. The leading case is Expert Clothing Service and Sales Ltd v Hillgate House Ltd [1986] Ch 340, where the Court of Appeal took a broad view of what can be put right.
The analysis tends to run in two stages. First, is the covenant positive or negative? Second, can the mischief the covenant was designed to prevent actually be undone in practice by the tenant taking action within a reasonable time?
Breaches of positive covenants, such as covenants to repair, to decorate, or to carry out works by a certain date, are generally treated as capable of remedy. Even a missed deadline can usually be remedied by doing the work late, provided the landlord is not left materially worse off.
Breaches of negative covenants are more mixed. Some, such as breach of a covenant against alterations, can be remedied by reinstating the property. Others are treated as incapable of remedy because the harm has lasting consequences that cannot realistically be reversed by the tenant stopping the conduct. Breach of a covenant against unlawful or immoral use is the classic example: even if the use stops, the stigma attached to the property can continue to affect the reversion. Breaches of covenants against assignment or subletting without consent are generally regarded as incapable of remedy, because the transaction itself cannot be undone.
Where the breach is not capable of remedy, the notice does not need to require the tenant to remedy it, but it still has to specify the breach and, if compensation is sought, require compensation. Even in these cases, the landlord should usually allow a short period, commonly around 14 days, before taking further steps, so that the tenant has the chance to apply for relief from forfeiture.
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Disrepair and the Leasehold Property (Repairs) Act 1938
Disrepair has its own extra layer of protection for tenants. The 1938 Act was originally aimed at leases of more than twenty-one years and has since been extended. As currently in force, it applies where:
- The lease was originally granted for a term of at least seven years, and
- At the date of the section 146 notice, at least three years of the term remain.
Where the Act applies, the section 146 notice must tell the tenant, in the terms required by the Act, that they have the right to serve a counter-notice within 28 days. If the tenant serves a counter-notice in time, the landlord cannot take any further step to forfeit, or to sue for damages for breach of the repairing covenant, without the leave of the court.
Leave will only be granted on one of the grounds set out in the 1938 Act, for example that immediate remedying of the disrepair is needed to prevent substantial diminution in the value of the reversion, or that the cost of immediate repair is small compared with the cost of later works. The practical effect is that speculative dilapidations-based forfeitures of longer residential and commercial leases are much harder to pursue.
If the notice fails to mention the tenant's right to serve a counter-notice where the 1938 Act applies, it will not be valid, and any forfeiture based on it will fail.
Service, residential leases and practicalities
The notice has to be served on the tenant in accordance with section 196 of the Law of Property Act 1925, or any service provisions in the lease itself. For long residential leases, section 168 of the Commonhold and Leasehold Reform Act 2002 is the critical additional hurdle. A landlord cannot serve a section 146 notice in relation to a long lease of a dwelling unless the tenant has admitted the breach, or the breach has been determined by the First-tier Tribunal (Property Chamber), a court, or an arbitral tribunal. Skipping that step is a common reason for notices being set aside.
Errors that cause notices to fail in practice tend to be familiar ones: insufficient particulars of the breach, no schedule of dilapidations, omission of the 1938 Act counter-notice wording, service on the wrong party or at the wrong address, and, for residential leases, no prior determination under section 168. Any of these can render the notice a nullity and leave the landlord exposed to a wrongful forfeiture claim if re-entry has already taken place.
Both landlords and tenants should take legal advice on section 146 notices. For landlords, the cost of getting it wrong can include damages and loss of the ability to forfeit on the current facts. For tenants, the counter-notice and remedial periods start running as soon as the notice arrives, and missing them closes off valuable protections. Practitioners should also keep an eye on developing legislation, including the Building Safety Act 2022 and the Renters' Rights Bill, which continue to reshape the landlord and tenant landscape around safety, remediation and residential tenures.
For current court fees, tribunal procedures and forms, check GOV.UK and the First-tier Tribunal (Property Chamber) pages for the latest information.
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