1. The problem: tenant neglect during the lease

Your lease obliges the tenant to repair and maintain the property. But they’re not doing it. You can see deterioration. Maybe other tenants are complaining. Perhaps it’s affecting your investment value or your ability to re-let adjacent units.

You have options, but they have different purposes, procedures, and consequences.

2. Section 146 Notice (Law of Property Act 1925)- Interim Schedule of Dilapidations

A Section 146 notice is a prerequisite to forfeiture. If you want to terminate the lease for breach of covenant (including repair covenants), you must first serve a Section 146 notice.

Purpose:

  • Formally notify the tenant of the breach
  • Require remedy (if the breach is capable of remedy)
  • Create the legal right to forfeit if the tenant doesn’t comply

Legal effect:

A valid Section 146 notice is a necessary step before you can forfeit (terminate) the lease for breach. It’s a powerful tool but leads to an extreme remedy.

When to use:

  • Breaches are serious enough that you’re genuinely considering forfeiture
  • You want to create maximum pressure for compliance and you are confident that the tenant wishes to stay
  • The lease allows forfeiture for the breach in question
  • You’ve considered whether forfeiture is actually in your interests

Important restrictions for repair covenants:

The Leasehold Property (Repairs) Act 1938 applies to leases of 7+ years with 3+ years unexpired. Before serving a Section 146 notice for repair breaches, you must serve a notice under this Act. The tenant can then claim the benefit of the Act, requiring you to get court permission before proceeding.

This significantly limits your ability to forfeit for repair breaches in many commercial situations.

Limitations:

  • Procedural requirements are strict; errors invalidate the notice
  • Tenant may apply for relief from forfeiture
  • For repair breaches, the 1938 Act creates additional hurdles
  • Forfeiture may not be in your commercial interest anyway

3. Jervis v Harris clause remedy (Repairs Notice)

Some leases contain a “Jervis v Harris” clause (named after the case) allowing the landlord to enter the property, carry out repairs the tenant has failed to do, and recover the cost from the tenant as a debt.

Purpose:

  • Enable the landlord to remedy defects directly
  • Recover the cost as a debt, not damages
  • Avoid the Section 18 cap on damages
  • Get repairs done rather than just claiming money

Legal effect:

If the lease contains a proper Jervis v Harris clause and you follow the correct procedure, you can:

  1. Enter the property
  2. Carry out necessary works
  3. Recover the cost from the tenant as a debt

This is different from damages — it’s recovery of money you’ve spent, and the Section 18 diminution cap doesn’t apply.

When to use:

  • Your lease contains a Jervis v Harris clause (check the wording carefully)
  • You actually want the repairs done
  • You’re prepared to fund the works initially
  • The tenant is likely to be able to pay the debt
  • You do not wish to forfeit the lease

Requirements:

  • Notice to tenant identifying breaches and giving time to remedy
  • Tenant fails to remedy within specified time
  • Entry and works in accordance with the lease terms
  • Proper records of works and costs
  • Demand for payment as a debt

Limitations:

  • Only works if the lease contains an appropriate clause
  • You must fund the works upfront
  • Risk of disputes about reasonableness of works or costs
  • Practical difficulties of carrying out works with tenant in occupation

4. Specific performance

In rare cases, you might seek a court order requiring the tenant to carry out specific repairs (specific performance of the repair covenant).

When granted:

Courts are generally reluctant to order specific performance of repair covenants because:

  • Constant court supervision would be needed
  • Damages are usually an adequate remedy
  • Practical enforcement is difficult

However, specific performance may be available where:

  • The property is unique or damages are inadequate
  • Repair is straightforward and definable
  • The landlord has a particular interest in seeing repairs done

Practical use:

Specific performance is rarely sought and rarely granted. It’s a theoretical option more than a practical tool in most cases.

5. Comparison summary

Feature Section 146 Notice (Interim Schedule) Jervis v Harris (Repairs Notice)
Primary purpose Prerequisite to forfeiture Direct remedy and cost recovery
Enforcement Leads to lease termination if breaches not remedied Cost recovery as debt
When useful Serious breach, prepared to forfeit Want repairs done, willing to fund
Key limitation Forfeiture may not be desirable Need appropriate lease clause
Section 18 cap Applies if claiming damages Doesn’t apply to debt recovery

6. Strategic considerations

What do you actually want?

  • Compliance (tenant does the work) → Section 146 or Jervis v Harris notice
  • Repairs done (you do the work) → Jervis v Harris
  • Lease terminated → Section 146 and forfeiture

What’s commercially sensible?

  • A sitting tenant paying rent may be more valuable than forfeiture
  • Funding repairs yourself requires cash and management
  • Aggressive tactics may sour relationships
  • Consider your long-term objectives

What does your lease allow?

  • Check forfeiture provisions
  • Check for Jervis v Harris type clauses
  • Check notice requirements
  • Check any tenant protections

7. Getting professional advice

These remedies involve technical legal procedures where errors can be costly:

  • Invalid notices may need to be re-served, wasting time
  • Procedural failures may prevent enforcement
  • Wrongful forfeiture creates liability
  • Recovering costs requires proper evidence

Before acting, get advice from:

  • A building surveyor (to document and cost the breaches)
  • A solicitor (to advise on procedure and serve notices correctly)

The building surveyor’s schedule supports whatever remedy you pursue. The solicitor ensures you follow the correct procedure.

Key Takeaways

  • Section 146 can lead to forfeiture — Powerful but extreme, and limited for repair breaches by the 1938 Act
  • Jervis v Harris allows direct remedy — But only if your lease contains the clause
  • Choose based on your objectives — What do you actually want to achieve?
  • Get advice before acting — Procedural errors are costly

Need Help?

If your tenant isn’t maintaining your property and you need to understand your options, we can help. We prepare interim schedules, advise on remedies, and support whatever enforcement approach you choose.

Get in Touch

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