146Restrictions and relief against forfeiture of leases and under-leases

146 Restrictions and relief against forfeiture of leases and under-leases S. 146(1) amended by Nos 97/1987 s. 181(11)(b), 74/2000 s. 3(Sch. 1 item 104), 82/2005 s. 51(a)(b). (1) A right of re-entry or forfeiture under any proviso or stipulation in a lease or otherwise arising by operation of law for a breach of any covenant or condition in the lease, including a breach amounting to repudiation, shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice— (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and (c) in any case, requiring the lessee to make compensation in money for the breach— and the lessee fails, within a reasonable time thereafter, or the time not being less than fourteen days fixed by the lease to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach. This subsection shall not extend to a breach of any covenant or condition whereby or by means whereof either alone or with other circumstances any licence or permit under the **Liquor Control Reform Act 1998** is or may be endangered or is or may be liable to expire or be forfeited, surrendered, taken away or refused. S. 146(1A) inserted by No. 82/2005 s. 51(c). (1A) A notice served under subsection (1) in respect of a breach amounting to repudiation— (a) does not constitute, and must not be taken to constitute, an affirmation of the lease by the lessor; and (b) does not affect any right that the lessor may have by reason of the repudiation. S. 146(2) amended by No. 110/1986 s. 140(2). (2) Where a lessor is proceeding, by action or otherwise, to enforce or has enforced without the aid of the Court or the County Court such a right of re-entry or forfeiture, the lessee may apply to the Court for relief; and the Court may grant or refuse relief, as the Court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances thinks fit; and in case of relief may grant it on such terms (if any) as to costs, expenses, damages, compensation, penalty or otherwise, including the granting of an injunction to restrain any like breach in the future, as the Court, in the circumstances of each case, thinks fit. S. 146(3) amended by Nos 110/1986 s. 140(2), 35/1996 s. 453(Sch. 1 item 68.2), 82/2005 s. 51(d). (3) A lessor shall be entitled to recover as a debt due to him from a lessee, or from the assignee or transferee of a lessee (where the assignment or transfer has been with the express consent of the lessor and the breach of covenant or condition, including any breach amounting to repudiation, has occurred since the assignment or transfer) or partly from the lessee and partly from the assignee or transferee and in addition to damages (if any), all reasonable costs and expenses properly incurred by the lessor in the employment of a legal practitioner and surveyor or valuer, or otherwise, in reference to any breach giving rise to a right of re-entry or forfeiture which, at the request of the lessee, is waived by the lessor, or from which the lessee is relieved, under the provisions of this Part either by the Court or by the operation of subsection (1) of this section. And the lessor shall be so entitled to recover whether the lessee has or has not rendered forfeiture unenforceable against him under that subsection. S. 146(4) amended by Nos 110/1986 s. 140(2), 82/2005 s. 51(e). (4) Where a lessor is proceeding by action or otherwise to enforce or has enforced a right of re‑entry or forfeiture under any covenant, proviso or stipulation in a lease, or otherwise arising by operation of law, or for non-payment of rent, or for any breach amounting to repudiation which the lessor has accepted as such, the Court may, on application by any person claiming as under‑lessee any estate or interest in the property comprised in the lease or any part thereof, make an order vesting, for the whole term of the lease or any less term, the property comprised in the lease or any part thereof in any person entitled as under-lessee to any estate or interest in such property upon such conditions as to execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, giving security, or otherwise, as the Court in the circumstances of each case may think fit, but in no case shall any such under-lessee be entitled to require a lease to be granted to him for any longer term than he had under his original sub-lease. (5) For the purposes of this section except so far as is otherwise provided— (a) ***lease*** includes an original or derivative under-lease; also an agreement for a lease where the lessee has become entitled to have his lease granted; also a grant securing a rent by condition; (b) ***lessee*** includes an original or derivative under-lessee, and the persons deriving title under a lessee; also a grantee under any such grant as aforesaid and the persons deriving title under him; (c) ***lessor*** includes an original or derivative under-lessor, and the persons deriving title under a lessor; also a person making such grant as aforesaid and the persons deriving title under him; (d) ***under-lease*** includes an agreement for an under-lease where the under-lessee has become entitled to have his under-lease granted; (e) ***under-lessee*** includes any person deriving title under an under-lessee. S. 146(6) amended by No. 82/2005 s. 51(f). (6) This section shall apply although the proviso or stipulation under which the right of re-entry or forfeiture accrues or in respect of which any breach amounting to repudiation occurs is inserted in the lease in pursuance of the directions of any Act of Parliament but shall not apply to leases by the Crown. S. 146(7) amended by No. 82/2005 s. 51(g). (7) For the purposes of this section a lease limited to continue as long only as the lessee abstains from committing a breach of covenant, including a breach amounting to repudiation, shall be and take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a breach. (8) This section shall not extend— (a) to a covenant or condition against assigning, underletting parting with the possession or disposing of the land leased where the breach occurred before the commencement of the **Property Law Act 1928**; or (b) in the case of a mining lease, to a covenant or condition for allowing the lessor to have access to or inspect books, accounts, records, weighing machines or other things, or to enter or inspect the mine or the workings thereof. (9) This section shall not apply to a condition for forfeiture on the bankruptcy of the lessee or on taking in execution of the lessee's interest if contained in a lease of— (a) agricultural or pastoral land; (b) mines or minerals; S. 146(9)(c) amended by Nos 97/1987 s. 181(11)(c), 74/2000 s. 3(Sch. 1 item 104). (c) a house used or intended to be used as licensed premises under the **Liquor Control Reform Act 1998**; (d) a house let as a dwelling-house, with the use of any furniture, books, works of art or other chattels not being in the nature of fixtures; (e) any property with respect to which the personal qualifications of the tenant are of importance for the preservation of the value or character of the property, or on the ground of neighbourhood to the lessor, or to any person holding under him. (10) Where a condition of forfeiture on the bankruptcy of the lessee or on taking in execution of the lessee's interest is contained in any lease, other than a lease of any of the classes mentioned in the last subsection, then— (a) if the lessee's interest is sold within one year from the bankruptcy or taking in execution, this section shall apply to the forfeiture condition aforesaid; (b) if the lessee's interest is not sold before the expiration of that year, this section shall apply only to the forfeiture condition aforesaid during the first year from the date of the bankruptcy or taking in execution. (11) When a lessee has assigned or transferred the lease with the consent of the lessor the bankruptcy of the lessee after such assignment or transfer shall not work a forfeiture or determine the lease unless the condition for forfeiture on bankruptcy contained in the lease is therein expressly extended to the bankruptcy of the lessee after the date of such assignment or transfer. S. 146(12) amended by No. 82/2005 s. 51(h). (12) This section shall not, save as otherwise mentioned, affect the law relating to re-entry or forfeiture or relief in case of nonpayment of rent whether or not such a breach amounts to repudiation. S. 146(13) amended by No. 82/2005 s. 51(i). (13) This section shall have effect notwithstanding any stipulation to the contrary but subsections (3) and (4) are to be read subject to the provisions of Part 10 of the **Retail Leases Act 2003**. No. 3754 s. 147.