Remedies

In the rare cases where the lease does not specifically provide a remedy to the landlord in the event of the tenant’s breach during the course of the term (for example, to enter and carry out the works or to forfeit), the court may, at its discretion, grant the remedy of specific performance if the court believes it just and equitable to do so. In effect, the landlord seeks an order akin to an injunction requiring the tenant to comply with its covenants. Specific performance is, however, a remedy that courts are reluctant to grant landlords, unless there are very specific circumstances (see Rainbow Estates Ltd v Tokenhold Ltd [1999]). Although this was a first instance decision, to date there has been no contrary case.

As a general rule, the court will avoid making an order that cannot be specific as to what is to be done or that will require it, effectively, to supervise the action required to be carried out. Therefore, the work to be done must be the subject of a clear schedule. The court will also take care to ensure that specific performance is not being used to avoid some other restriction on the landlord to enforce the terms of the tenancy, such as the obligations of the Leasehold Property (Repairs) Act 1938. Therefore, one can expect the court to have regard to the 1938 Act when considering whether to order specific performance and when seeking to satisfy itself that the landlord has legitimate reasons for requiring the tenant to carry out the works.

If the landlord delays in seeking specific performance, then the court will take that into consideration when deciding whether or not to make the order. The longer and the more inexcusable the delay, the less likely it is that an order will be made. The possibility of the tenant being caused hardship is another factor. Where the lease does not have long to run, the court will be slow to order specific performance, particularly if the work cannot be carried out before the end of the term.

If the court orders the tenant to carry out the work by way of specific performance, then as with the breach of an injunction, the failure to do so will constitute contempt of court and the court may order that the tenant (or a director where the tenant is a company) be imprisoned. The court may also order the landlord to carry out the work and recover the cost from the tenant.

Technically there is no need for anything other than a letter notifying the tenant that the works are to be carried out and that specific performance will be sought if they are not. Given the technical nature of the documents required in this instance, they should be served by a solicitor.