Distressing for landlords
The lessor’s common law self-help right of distress was replaced by the commercial rent arrears recovery scheme (CRAR). This was introduced by the Tribunals, Courts and Enforcement Act 2007 with the Taking Control of Goods Regulations 2013 (SI 2013/1894) poking their noses in. The scheme is only available in relation to commercial premises. At least seven days’ rent must be unpaid.
Common law distress amounted to a waiver of the right to forfeit. But what of the exercise of CRAR? Over to Brar and another v Thirunavukkrasu [2019] EWCA Civ 20132 where enforcement agents took control in the lessee’s shop on behalf of the lessor for £10,533 of rent and fees which the lessee stumped up three days later. Six days after that, the lessor purported to forfeit. The lessee brought proceedings claiming a declaration as to the unlawfulness of the forfeiture and damages. The Court of Appeal ruled that the lessor had waived their right to forfeit. CRAR in principle amounted to an unequivocal act confirming the lessor’s
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