July 14, 2009
The ability of a landlord to forfeit a lease by sending in the bailiff to peaceably re-entering property has always been a useful tool when dealing with commercial tenants.
Mixed use property has never been a problem where the residential element of the property can be accessed separately after the commercial side has been shut off.
This in recent years has changed and in Pirabakaran v Patel 2006, the Court of Appeal clarified the position on whether commercial property can be re-entered when they are mixed use a flat above a shop used by the tenant.
The position with residential property, has limited the ability of a landlord to regain possession without proceedings and getting a possession order.
The Protection from Eviction Act 1977 says
“Where any premises are let as a dwelling on a lease which is subject to a right of re-entry or forfeiture it shall not be lawful to enforce that right otherwise than by proceedings in the court while any person is lawfully residing in the premises or part of them. “
The case of Pirabakaran v Patel has clarified that where there is mixed commercial and residential use, a landlord is in breach of the Protection from Eviction Act by peaceably re-entering the commercial part of the premises. The Court of Appeal said that the part that says ‘let as a dwelling’ meant ‘let wholly or partly as a dwelling’ and not ‘let exclusively as a dwelling’.
The court say that the tenants of mixed-use premises should not be treated any differently from those who are solely residential. This is also fits in with the right for private and family life under the Human Rights Act 1998
So you cannot peaceably re-enter the property and will need to forfeit the lease through court proceedings. To re-enter any part of the premises will be contrary to Protection from Eviction Act 1977.