Is the forfeiture appropriate in the circumstances?
Is there a benefit to taking back possession?
What is the market like (will I be able to find a new tenant quickly?)
Are there any guarantors or other forms of security (rent deposit) that can be called upon to address the arrears in rent?
Can the property be secured – i.e. are there squatters or a risk of squatters entering the property if is vacant?
Does the property need to be developed/would benefit from development?
A landlord should be careful not to do anything that might be deemed a waiver of rights where it is considering forfeiture. A waiver will exist where the landlord:
Acts in a way which clearly acknowledges that the lease is to continue; in particular, accepting rent is a clear act of acknowledging the continuation of the lease and making the tenant aware of this. Knows of the tenant’s breach; and makes the tenant aware of the continuation of the lease. To limit the risk of waiver, having considered their options, landlords should take forfeiture action at the earliest opportunity.
Relief from Forfeiture: A tenant may be able to ask a court to give relief from forfeiture (i.e. to put the tenant back into the position it would have been in, had forfeiture not taken place) An application may be made by a tenant immediately after the landlord has completed the forfeiture. London Bailiff Services partner solicitors are on hand to help landlords challenge with these applications should they arise. Following an application the court may consider:
Has the tenant acted deliberately in potentially breaching its obligations
Has there been any delay in making an application for relief (and in the meantime, has the landlord granted new leases to other parties in respect of the property)
The financial position of the tenant
Whether the tenant has paid the rent arrears
Whether there has been a waiver in the right to forfeit by the landlord