Forfeiture proceedings and waiver of the right to forfeit

When a commercial tenant falls behind on rent, landlords can feel pressure to act quickly to protect their investment. One of the most powerful remedies available is forfeiture – the right to bring the lease to an end because the tenant has breached its terms.

However, landlords must take care not to accidentally waive their right to forfeit by acting in a way that suggests the lease is continuing.

We explain how forfeiture works, when it can be used and how to avoid unintentionally waiving your right to do so.

What is forfeiture?

Forfeiture allows a commercial landlord to terminate a lease when the tenant breaches their obligations – most commonly by failing to pay rent. The right to forfeit must be expressly included in the lease. If it is, landlords can either peaceably re‑enter the premises (usually by changing the locks) or issue court proceedings seeking possession.

For rent arrears, landlords can usually forfeit without serving a Section 146 notice, as non‑payment of rent is treated differently from other breaches. However, the process must still be handled carefully to avoid disputes or claims of unlawful eviction.

When can a landlord forfeit for non-payment of rent?

A landlord can generally forfeit as soon as rent is overdue in accordance with the terms of the lease provided that they have not waived the right to forfeit. Before taking action, it’s worth considering the tenant’s circumstances – if they are only experiencing temporary financial difficulty, forfeiture may not be in in the interests of a landlord.

Landlords should consider the long‑term plans for their property taking into account that forfeiture ends the lease immediately.

Waiver of the right to forfeit

One of the biggest risks for landlords is waiving the right to forfeit. Waiver happens when a landlord, knowing about the breach of non-payment of rent, acts in a way that recognises the lease as continuing. Once waived, the right to forfeit for non-payment of rent is lost, unless and until the breach of non-payment of rent arises again.

Common examples of waiver can include demanding or accepting rent after arrears have arisen; communicating with the tenant in a way that treats the lease as ongoing (e.g., discussing future occupation or repairs) or serving notices that assume the lease is still in force.

Waiver can occur unintentionally, and even a single email or phone call can be enough. For this reason, landlords should proceed cautiously and avoid any routine contact with the tenant once arrears arise, unless they have taken legal advice.

Protecting your position as landlord

To preserve your right to forfeit:

Avoid accepting any rent, including partial payments.
Limit communication with the tenant to essential matters only.
Seek legal advice early, especially if you are considering peaceable re‑entry.
Keep clear records of arrears, correspondence, and any steps taken.

Considering your options

Forfeiture is a serious step with long‑term consequences for both landlord and tenant. It can be an effective remedy, but it must be used strategically and with full awareness of the legal risks. If you are unsure whether forfeiture is appropriate, or whether you may have already waived your right to forfeit, professional advice is essential.

If you would like more support with this issue, you can contact our Dispute Resolution Team. Call us now on 0330 221 8855 or email us at disputeresolution@attwaters.co.uk