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If you’re a landlord that has issues with a break in your contract, or a tenant that has been handed a section 146 notice, then this article is for you. Here, we break down everything you need to know about section 146 notices whilst giving all the information on serving them.
If you need any legal help with section 146 notices, please call us directly on 020 3007 5500 or visit our landlord and tenant page for more information.
What is a section 146 notice?
A section 146 notice comes from section 146 of the Law of Property Act 1925. The landlord serves this to the tenant, specifically in the event of the tenant breaching a covenant of the lease. The tenant must then remedy the breach, or risk their lease being terminated.
By serving this notice, the landlord is exercising their right to forfeiture if the breach is unfixed. Forfeiture allows a landlord to prematurely end a lease.
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What are some common reasons for serving a section 146 notice?
Section 146 covers most breaches of covenant, barring non-payment of rent. Some examples of covenant breaches that fall under section 146 include:
- Unapproved alterations to the property.
- Damages to the property.
- Sub-letting parts of the property (without consent.)
- Noise complaints.
- Parking on a neighbour’s drive.
Upon learning of these issues, the landlord must notify the tenant as soon as possible. The landlord should then send the notice immediately if the tenant does not remedy the breaches.
What makes a section 146 notice invalid?
For a section 146 notice to be valid, it must:
- Specify the exact breach of the covenant.
- Require the tenant to remedy the breach, if it is capable of remedy.
- Require the tenant to monetarily compensate for the breach.
- Give the tenant reasonable time to remedy the breach.
Any acceptance of rent after a section 146 notice has been served could result in a waiver of forfeiture, thus making the notice invalid. The landlord must therefore not waive or ignore any breaches under the lease. As a landlord you can, however, ‘park’ the acceptance of rent, meaning it is owed but remains unpaid.
Furthermore, if the landlord has not given the tenant ‘reasonable’ time, the notice becomes invalid.
How much time should I give the tenant?
You must give the tenant a ‘reasonable’ amount of time to remedy the breach of the covenant. As all scenarios are different, this amount of time will be too.
Because of this, consider the magnitude and severity of the breach when allowing time for remedy. For example, damages to the property will generally require more time to fix than noise complaints.
Many people consult property solicitors to find out what a reasonable time period is. This is because it is hard without prior experience to gauge how long a particular remedy should take. For example, how long should a tenant have to fix holes in the wall? Should it be 1 week? Or perhaps 2 months – or longer? Or for commercial properties, how long should it take to restore the lot to the state it was in when the lease began?
If you are filing a section 146 notice, always ensure you give the tenant enough time to respond and remedy the breach; failing this could result in invalidation.
Serving a section 146 notice?
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How do I serve a section 146 notice?
When serving notice, it’s of utmost importance that you have proof of delivery. An example of proof may be having a neutral witness present when you serve the notice.
The following are the recommended ways to serve notice:
- Personal delivery – personal delivery means handing the notice to the tenant. A landlord can do this by giving the tenant an envelope, addressed to them at the property. Notice is served on the day it was delivered.
- Left at address – a landlord can do this by producing an envelope, addressed to the tenant at the property and leaving it at the property, for example, by posting it through the letterbox. In this case, the deemed date of service will be three days after it’s delivered to the property.
- Recorded delivery – If the envelope returns undelivered, the landlord won’t have served the notice. However, if the tenant accepts the delivery, the notice’s serving is on the delivery day.
- Process server – a process server is a professional service that serves legal notices. A process server will produce proof of service for use in court.
- First-class post – a landlord can also serve notice by postal delivery. Because first-class post takes two working days to arrive, the notice period will be two days.
- Email – if the landlord serves notice by email, it will become active on the same day if sent before 4.30 pm on a working day. If sent after 4.30 pm, it will become active on the next working day.
What happens if the tenant doesn’t remedy the breach?
Firstly, the landlord must ensure that the tenant has received and understood the section 146 notice.
The landlord then has the right to forfeit the tenancy if the tenant does not comply with the terms of the notice. This must go through the County Court as there is no other way to terminate the lease after serving the notice. In this case, the tenant has the right to apply for relief against the sought order.
If the tenant does not agree with the section 146 notice, they can then argue against it in court. To do this, the tenant can serve a counter-notice that delays the forfeiture of the lease until the court consents.
What does relief mean?
Relief means the judge may choose to suspend the order or impose an extension for the tenant to make changes. However, this is always at the judge’s discretion.
How can Britton and Time Solicitors help?
If you’re a landlord or tenant who’s struggling with understanding the forfeiture process in the current climate, our award-winning solicitors can help.
To contact us about your matter, send us an email via [email protected] or call us directly on 020 3007 5500.
Hi,
I rent my flat and my landlord has just been served a section 146 for non payment of ground rent. Well, I have been served it.
My landlord is A-wall and I do not think he is currently in country.
As a contracted tenant that pays his rent to the landlord of the flat what are my rights here?
Obously the ground rent is nothing to do with me, so am I protected?
Hello M Rose.
Thank you for your comment. Whilst it’s not your fault that the Landlord hasn’t been paying the ground rent, it is possible that the freeholder may take the property back which can result in the tenant being evicted. You should try to contact your private landlord directly or raise the matter with your estate agent. If you need further advice, please call us on 020 3007 5500 or email us on [email protected] to book a consultation with our property solicitors.
My Tenant (leaseholder) who holds a flat located within my freehold building has a clause in their long-term lease agreement which stipulates no sub-letting without written permission of Freeholder (myself). They have been renting out the flat privately for at least 15+ years without asking for my consent. Tenants are living there currently.
Do I have grounds for seeking forfeiture? How do I go about it? Leaseholder is domiciled elsewhere.
Hello Annemarie. Thank you for your comment. Due to the complex nature of property laws it will be best to discuss your case in full detail with our property solicitors. You can book a consultation by calling on 0203 007 5500 or emailing [email protected]
Hi,
I am looking for some advice as Im not really sure what this actually all means for me.
I have been served a 146 notice on my flat which has a residential mortgage on it for unpaid services charges. My freeholder (landlord) is also the maintenance company and they took me to court last year…
The debt originally began in April 2020 during the pandemic, when I had to go on benefits and my service charges have accrued. During this time I also have been trying to sell the property. I cannot pay this debt. I allowed it to go to court to stop the interest payments increasing.
The debt including the court charges is at just over £10,000.
The notice is dated 3rd January and the notice demands it be paid 30 days from that date .
What should I do ?
I could pay a small amount until the property sells. I am considering auctioning the flat instead, as I my income has been sporadic in the last few years due to health and circumstances.
How do I apply for relief ?
My mortgage has also recently increased by 500% due to interest rates…I am really worried and desperate to get out of this situation.
Hello Louise, thank you for your comment. A member of our team will email you regarding your question.
Hello,
I am a freeholder and reside in the same building as my leaseholder. For the past two years, the leaseholder has failed to pay ground rent despite receiving reminders from me. Last year, at the leaseholder’s request, I replaced the gutters in the building. According to their leasehold agreement, they should reimburse me 40% of the expenses incurred as part of the service charge, which they have not done. Additionally, despite being obligated by the leasehold agreement to pay 40% of the building insurance premium, mandatory for mortgage purposes, they have also neglected to do so. The leaseholder deliberately ignores my requests for payment.
Please advise on what I can do in this situation?
Hello Slawomira, thank you for your comment. Our client care team are going to reach out to discuss booking a consultation with our property experts.
I have requested access to the roof void to check on the condition on numerous occasions but been denied each time. They want to change the dates and times which I am unable to do given I rely on surveyors and workmen to agree dates etc.
They are trying to make it impossible.
My questions are 1. do I need to get the court to confirm that a section 146 would be valid or can I just issue it? Also 2. how much time do I give them to remedy or is it indeed something which can be remedied?
Hello Joanna, thank you for your comment. Our client care team will contact you to discuss your case further and see how we can help.