Pawlowski, Mark ORCID: https://orcid.org/0000-0002-5473-5809 (2014) Equity's jurisdiction to relieve against forfeiture of leases - An historical perspective. The Denning Law Journal, 26. pp. 149-169. ISSN 0269-1922

Preview

PDF (Email of Acceptance) 12924_PAWLOWSKI_Acceptance_Email_2014.pdf - Additional Metadata Download (106kB)

Abstract

This article seeks to trace the evolution of equity’s jurisdiction to relieve against the forfeiture of leases from the early 17th century cases through to the present day in the United Kingdom jurisdiction. Although the celebrated case of Sanders v Pope, decided in 1806, marked a trend towards a more flexible (discretionary) approach to equitable relief, this was to be short lived following Lord Eldon’s judgment in Hill v Barclay in 1811 declining to grant relief against forfeiture of a lease for a wilful breach of covenant not involving the failure to pay rent even where the same was capable of adequate compensation. This remained the position until 1973, when the House of Lords in Shiloh Spinners Ltd v Harding took the opportunity to review the whole question of the scope of equity’s jurisdiction to relieve against forfeitures. What emerged was a principled approach to the grant of equitable relief which was not limited to the two orthodox heads of relief: (a) where the right to forfeit was inserted by way of security for the payment of rent and (b) where the breach had been occasioned by fraud, accident, mistake or surprise. The Shiloh ruling paved the way for the granting of relief for breaches of other covenants in the same way as that in the case of rent, namely, to prevent a forfeiture where the landlord may be adequately compensated and receive proper undertakings as to future performance, so that the forfeiture clause is merely security to achieve these results.
The article also examines the current scope of equity’s jurisdiction to relieve against forfeiture given that the court’s statutory power to grant relief has been gradually extended in the landlord and tenant context from the single case of non-payment of rent till it has reached its present dimensions of a broadly based jurisdiction to relieve against virtually all forms of default by the tenant, sub-tenant or mortgagee. What emerges is a more limited, but no less significant, equitable power to grant relief outside the court’s statutory jurisdiction. In jurisprudential terms, it is argued, equity’s ability to prevent the unconscionable exercise of legal rights remains at the heart of our common law tradition.

Item Type:	Article
Uncontrolled Keywords:	Equity; Forfeiture of leases; Relief; Wilful breaches; Statute; Suspension of rights
Subjects:	K Law > KD England and Wales
Faculty / School / Research Centre / Research Group:	Faculty of Liberal Arts & Sciences Faculty of Liberal Arts & Sciences > School of Law & Criminology (LAC) Faculty of Liberal Arts & Sciences > Crime, Law & (In)Security Research Group (CLS)
Related URLs:	http://www.buckingham.ac.uk/research/den...
Last Modified:	01 Nov 2021 00:11
URI:	http://gala.gre.ac.uk/id/eprint/12924

Actions (login required)

View Item

Downloads