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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 info@brittontime.com or call us directly on 020 3007 5500.
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