Whether you own or rent property for your business operations, the Human Rights Act (HRA) may affect your management of the property.
Two of the landlord's most potent weapons are distraint (otherwise known as distress for rent) and forfeiture. These are rather summary and quite draconian remedies which landlords of both residential and commercial properties can utilise.
Distraint allows the landlord, if the tenant is in arrears of rent (not services charges or insurance premiums), to instruct a certified bailiff to seize goods on the premises which, if the tenant does not clear the arrears within 5 days, the landlord may sell and thereby reduce/extinguish the arrears. Distraint is a highly effective tool for the landlord, often proving much quicker and cheaper than litigation.
Forfeiture, a remedy predominantly used in respect of commercial leases, is available to the landlord allowing him, in cases where there are arrears of rent or other breaches of covenant (subject to specific procedures), to peaceably re-enter and secure the premises thereby bringing an immediate end to the lease.
Turning now to the possible effect of the HRA, forfeiture by peaceable re-entry would appear to determine the tenant's civil rights and obligations without the right to a fair trial stated under Article 6 and appears to also amount to a direct breach of Article 8 which states "everyone has the right to respect for his private life and family life, his home…". However, it is likely that such an argument would fail under the HRA as the landlord's re-entry is pursuant to a contract (the lease) in which the tenant has agreed to the re-entry.
Accordingly, the tenant will have no reasonable claim in domestic law to the civil rights he claims have been breached. In addition, a tenant does have the right by statute to claim relief from forfeiture, thus extending protection of the tenant's rights.
Article 8 is applicable to property but it is generally thought to be intended to protect the individual against the State and therefore is not likely to be of use to tenants who have suffered peaceable re-entry, although there is little doubt it will be argued.
In contrast to forfeiture, the remedy of distraint is not often one to which the tenant has "agreed" in the lease. It is sanctioned by the State in legislation. The State also sanctions the mechanism for distraint by certifying the bailiffs executing the distraint. In the circumstances, at first blush, distraint would appear to be ripe for challenge under Articles 6 and 8. Present indicators are that the Courts will adopt a very restrictive approach in the application of the HRA, and will be reluctant to be dragged in to what are essentially ordinary civil disputes between private parties. In my opinion, the HRA will have little, if any, impact upon the law of forfeiture. However I suspect the life of the law of distraint as we know it may soon come to an end.
The information and opinions contained in this publication are provided by national law firm Hammond Suddards Edge. They should not be applied to any particular set of facts without seeking appropriate legal or other professional advice.
