Article

Forfeiting tenancies of mixed use premises

Premises let only for business purposes may be forfeited for rent arrears by the landlord either re-entering the premises or issuing and serving court proceedings seeking a possession order against the
tenant. If forfeiture is effected by physical re-entry, the landlord may not force entry to the premises, if there is someone present on the premises who opposes the entry, as this is a criminal offence; but if at
the time no-one is at the premises this is not an obstacle. The position is markedly different to that of residential premises, where a tenant enjoys additional protection from forfeiture under section 2 of
the Protection from Eviction Act 1977, which provides that premises let as a dwelling cannot be forfeited otherwise than by court proceedings if the tenant is residing there. However, the position for tenancies with a business and residence use, normally a shop and accomodation above, was not clear until the recent Court of Appeal decision of Pirabakaran v Patel. In that case the landlord sought to forfeit the tenancy by re-entering the shop premises, as forfeiture occurs once any part of the premises are re-entered. Later on, after the tenant seriously damaged the premises and was arrested by the police, they took back the residential part as well, on the basis that the earlier forfeiture was effective to end the tenancy. The Court disagreed, and decided that in the case of mixed business and residential use the phrase "let as a dwelling" under the 1977 Act also applied to the shop. Thus, the tenant was allowed to return to both the shop and the residence. Interestingly, the Court considered Human Rights principles to support its decision. This case sends out a clear warning to landlords wishing to terminate tenancies of mixed use premises that there is now a grave danger that re-entry without a court order will be both ineffective and a criminal offence; increasingly traditional self-help remedies are being curtailed by legislation and the Courts, and for tenants and landlords there is ever greater reason to seek legal help.

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