201902.27

When can I serve a section 146 notice on my tenant? Patience is a virtue!

Toms v Ruberry [2019] EWCA Civ 128 discusses

We won’t bore you with the gory details save to say that this case involved a tenant who had failed to keep his pub in good repair. As a result, the landlord sent a default notice requiring the tenant to remedy breaches of the repairing covenants within 14 days, together with a section 146 notice.

Whilst there was no issue with the default notice, on appeal the judge held that “the landlord was not entitled to serve a section 146 notice until a default notice … had been given and the period of 14 days specified in that clause had passed without the breaches being remedied”.

The landlord had tried to argue that such a notice only required the underlying breach of covenant which could give rise to a right of re-entry to have occurred before service of the notice. This line of argument, however, was firmly rejected.

The judge emphasised that the correct breach here was the tenant’s failure to comply with the default notice, which was an event that had not happened when the section 146 notice had been served. In other words “Patience is a Virtue”!

For the avoidance of doubt, a section 146 notice must:

  • State the particular breach complained of
  • If it is capable of remedy, require the tenant to remedy the breach and
  • Can only be given if the tenant has failed to remedy the breach within a reasonable period of time.

These requirements only make sense if the relevant breach has occurred. The court urged parties to take a common-sense interpretation to serving section 146 notices.

Please feel free to speak to Priya Sejpal, our resident Property Litigation expert, about this matter. Priya can be contacted by email; priya.sejpal@curwens.co.uk

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