Abidogun v Frolan Heath Care Ltd & Anor

A tenant’s denial of the landlord’s title may give rise to forfeiture through an implied term of the lease. That right is nevertheless subject to Law of Property Act 1925, section 146. A landlord cannot avoid the statutory protection by characterising the denial as a repudiatory breach governed solely by ordinary contractual principles.

Where repudiation is relied on, the court must find conduct sufficiently repudiatory and clear acceptance by the landlord. Those matters cannot ordinarily be determined on appeal where they were not pleaded, found or properly argued below.

The appellant landlord appealed from the order of His Honour Judge Cooke, sitting as a deputy judge of the Chancery Division, dismissing his claim to forfeit a lease of nursing-home premises for denial of title. The judge had held that a notice under section 146 was required and permitted the denial to be removed from the pleadings.

The appellant argued that denial of title operated by law, or constituted an accepted repudiation of the lease, so that section 146 did not apply. The central issues were whether the statutory scheme governed forfeiture for denial of title and whether the appellant could raise the repudiation argument for the first time on appeal.

1. Appeal dismissed. The claim for forfeiture failed because no notice under section 146 of the Law of Property Act 1925 had been served.

2. The repudiation argument was a new point not raised below. There was no finding that Frolan intended to abandon the lease rather than obtain the court’s determination of disputed legal issues. The Court of Appeal should not make such findings itself where the issue had not been put to the witnesses.

3. The modern basis of forfeiture for denial of title is an implied term of the lease that the tenant will not prejudice the landlord’s title. The right does not arise independently of the lease merely because it is described as arising by operation of law.

4. A right to determine a lease for denial of title is a right of forfeiture within section 146. The statutory reference to a right of re-entry or forfeiture for breach of a covenant or condition in the lease includes rights and conditions implied by law. The reasoning in Clarke v Dupre Properties and BT Plc v Department of Environment supported that construction.

5. In any event, the landlord had not clearly and unequivocally accepted any repudiation. The proceedings and submissions had consistently been framed as a claim for forfeiture, and the landlord had not pleaded a contractual right to terminate for accepted repudiation. Ordinary costs were awarded to Frolan Health Care Limited, including the specified costs of the skeleton argument, with no order as to the other costs.

• Court of Appeal (Civil Division): Appeal from the order dated 26 June 2000 of His Honour Judge Cooke, sitting as a deputy judge of the Chancery Division. Appeal dismissed.