NLJ: Pattern of life

Alexander Bastin on forfeiture—pitfalls & remedies

Several issues can arise in forfeiture proceedings where a defendant fails to attend the first hearing and a possession order is made.


The usual reasons for not paying rent or service charges are either a dispute about how much is owed or an inability to pay. In such cases the tenant is usually around to make their point. If nothing is heard from the tenant, then beware.

CPR 6.9 provides that where an individual has not given an address for service they must be served at their “usual or last known residence”.

While that sounds easy, experience suggests many struggle with it. It is not merely a question of belief but, rather, actual knowledge. Is it possible to say confidently that the tenant resides (or used to) at a particular address? What is the evidence?

The leading case on “residence”, Relfo Ltd (in liquidation) v Varsani [2009] EWHC 2297, [2009] All ER (D) 30 (Oct) indicates that the critical test is the defendant’s “pattern of life”. One can have more than one “residence”. A defendant does not have to spend much time there for it to count (as Varsani demonstrates).

If there is reason to believe the defendant no longer resides at the address, reasonable steps must be taken to ascertain their current residence (CPR 6.9(3)). Arguably a complete lack of response to demands and letters before action served at the property coupled with an absence of other information indicating the tenant’s presence, gives reason to believe they no longer reside there.

If “reasonable steps” have been taken without success, then service can be made to the defendant’s usual or last known residence notwithstanding any knowledge that they are no longer there (CPR 6.9(6)).

If the tenant has a well-founded non-service argument, turn to CPR 3.10 (an error of procedure does not invalidate any step in the proceedings unless the court so orders) and CPR 6.15 (permission to serve by an alternative method or at an alternative place) and consider making a retrospective application (which, in effect, validates a failure to serve correctly). Can it be shown that the proceedings came to the defendant’s attention or that the defendant’s predicament was of their own making (by, for 

Set aside applications

If service was valid, the landlord’s next difficulty may be resisting the tenant’s set aside application made pursuant to CPR 3.1(2)(m) and based on the tenant’s non-attendance at the hearing. The three leading cases are Forcelux Ltd v Binnie [2009] EWCA Civ 854, [2009] All ER (D) 216 (Oct), LB Hackney v Findlay [2011] EWCA Civ 8, [2011] All ER (D) 149 (Jan) and Grimason v Cates [2013] EWHC 2304 (QB), [2013] All ER (D) 409 (Jul). Forcelux and Findlay are Court of Appeal and Grimason is High Court.

Forcelux and Grimason are both long-lease matters whereas Findlay concerned a secure tenancy. But Grimason followed the Court of Appeal’s (CofA) reasoning in Findlay that the court should apply CPR 39.3(5) and CPR 3.9 by analogy with the stricter provisions of CPR 39.3(5) taking precedence (in Forcelux only the more easily satisfied CPR 3.9 was applied by analogy). This causes some confusion: why did the long lease High Court matter follow the secure tenancy CofA approach? The answer most usually given is that Forcelux concerned unusual and compelling circumstances.

Many lawyers acting for tenants see the key unusual and compelling circumstance to be the loss of a valuable asset (ie the flat) for non-payment of a small sum (ie the arrears). But this does not explain why Grimason (long lease) followed Findlay (secure tenancy). Perhaps key was that in Forcelux the tenant was still within time to apply for relief and had good prospects of succeeding.

If so, the timing of a relief application is crucial. Section 138(9A) of the County Courts Act (for rent arrears) gives six months from recovery of possession while s 146(2) of the Law of Property Act 1925 (non-rent arrears breaches) requires an application prior to the physical recovery of possession (as explained in Billson v Residential Apartments Ltd [1992] AC 494).

Forfeiting for service charge arrears

If faced with forfeiting for service charge arrears where the service charge is reserved as rent practitioners may turn to s 138(9A) (think Escalus Properties Ltd v Robinson [1996] QB 231, [1995] 4 All ER 852). However, landlords who have retaken possession will want to argue that the tenant is out of time as any relief application is made pursuant to s 146(2) - it having been held in Freeholders of 69 Marina v Oram [2011] EWCA Civ 1258 and Barrett v Robinson [2014] UKUT 322 (LC) that a s 146 notice has to be served even where a lease charge is reserved as rent. If this is correct, landlords can sell forfeited properties as soon as they have retaken possession and not wait six months as has been the usual practice.

Acting for a lessee

If acting for a lessee it is important to establish (whether by agreement, undertaking or injunction application) that the landlord will not deal with the property pending resolution of the matter. A third party’s acquisition of an interest in the property (other than under, say, a licence or an assured shorthold tenancy) may prejudice the tenant’s set aside application.

If the landlord has re-taken possession, check whether application to close title has been made to HM Land Registry. Depending on the time limits and if appropriate, a relief from forfeiture application should be made immediately together with an application to set aside all prior judgments where non-service may have occurred, ie prior money judgments that were not the basis for the possession order; it being common for landlords to obtain a number of money judgments before seeking to forfeit.

Alexander Bastin, barrister, Hardwicke Chambers (www.hardwicke.co.uk)

This article was originally printed in New Law Journal, 11 March 2016.