Waiver of right to Forfeit a Commercial Lease - Faiz v Burnley Borough Council


This was recently considered by His Honour Judge Halliwell (sitting as a Judge of the High Court) in the case of Faiz v Burnley Borough Council [2020] EWHC 407 (Ch), handed down on 25 February 2020.


The relevant particulars are as follows:

Legal Principles

HHJ Halliwell considered some relevant legal principles; at paragraphs 63 to 66, he said:

'A landlord waives its rights of forfeiture when, with full knowledge of the facts upon which its rights have arisen, it acts in a way consistent only with the continuation of the lease.

In Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850, Lord Diplock observed, at 883 A-C , that this type of waiver "…arises in a situation where a person is entitled to alternative rights inconsistent with one another. If he has knowledge of the facts which give rise in law to these alternative rights and acts in a manner which is consistent only with his having chosen to rely on one of them, the law holds him to his choice even though he was unaware that this would be the legal consequence of what he did. He is sometimes said to have "waived" the alternative rights, as for instance a right to forfeit a lease or to rescind a contract of sale for wrongful repudiation or breach of condition; but this is better categorised as "election" rather than as "waiver". It was this type of "waiver" that Parker J was discussing in Matthews v Smallwood [1910] 1 Ch 777 ".

In a passage of his judgment in Matthews v Smallwood (supra) at 786-787 — regarded as a classical statement of the law — Parker J stated as follows.

"Waiver of a right of re-entry can only occur where the lessor, with knowledge of the facts upon which his right to re-enter arises, does some unequivocal act recognizing the continued existence of the lease. It is not enough that he should do the act which recognizes, or appears to recognize, the continued existence of the lease, unless, at the time when the act is done, he has knowledge of the fact under which, or from which, his right of entry arose. Therefore we get the principle that, though an act of waiver operates with regard to all known breaches, it does not operate with regard to breaches which were unknown to the lessor at the time when the act took place. It is also, I think, reasonably clear upon the cases that whether the act, coupled with the knowledge, constitutes a waiver is a question which the law decides, and therefore it is not open to a lessor who has knowledge of the breach to say "I will treat the tenancy as existing, and I will receive the rent, or I will take advantage of my power as landlord to distrain ; but I tell you that all I shall do will be without prejudice to my right to re-enter, which I intend to reserve". That is a position which he is not entitled to take up. If, knowing of the breach, he does distrain, or does receive the rent, then by law he waives the breach, and nothing which he can say by way of protest against the law will avail him anything. Logically, therefore, a person who relies upon waiver ought to shew, first, an act unequivocally recognizing the subsistence of the lease, and secondly knowledge of the circumstances from which the right of re-entry arises at the time when the act is performed". 

Having endorsed this statement of the law, Aldous LJ confirmed, in Cornillie v Saha and Bradford & Bingley Building Society (1996) 72 P&CR 147 at 155-156, that there was an additional requirement, namely that the landlord's act of recognition must be communicated to the tenant.'


After consideration of Metropolitan Properties Co Ltd v Cordery (1980) 39 P&CR 10, Woodfall on Landlord and Tenant, volume 1 at paragraph 17.098, Price v Worwood (1859) 4 H & N 512, Osibanjo v Seahive Investments Ltd [2008] EWCA Civ 1282 and Mannai v Eagle Star [1997] AC 749, the Court analysed the position as follows:

Thus in summary, at the time of D’s impugned rental demand, D was deemed not to have knowledge of the breach (only that C3 was in occupation), so D’s actions were not regarded as a waiver. The second invoice, even if construed as a demand for insurance rent at a time when D had knowledge of the breach, was only for insurance rent for the period up to the point of knowledge of the breach, so likewise would not be regarded as a waiver of D’s right to forfeit.

As will be evident from the Court's judgment, the vital point in cases of this nature is the extent of the Landlord’s knowledge at the time a demand for rent (insurance or other type of rent) is made and whether the Landlord’s actions are consistent only with the continuation of the Lease.




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