Failure To Pay Rent

If a tenant fails to pay rent, a landlord may avail himself of the following:
 

    Distress

    Action for rental arrears

    Re-entry and re-possession of the premises

The landlord may issue a Writ of Distress whereby the Court Bailiff makes a seizure of goods on the tenanted premises and institutes a public sale by auction. However, the tenancy is not terminated and the tenant is allowed to remain on the premises.

Action for Rental Arrears

A Writ of Summons is issued claiming for the amount of rent that is due. The Writ may include a claim for interest on such rental arrears and legal costs. However, the tenancy is not terminated and the tenant is allowed to remain on the premises.

 Re-entry and Re-possession

If there is a re-entry and forfeiture clause in the Tenancy Agreement, the landlord may re-enter the premises and terminate the tenancy.

Explanatory Note: A re-entry and forfeiture clause is a clause that provides that if rent shall fall into arrears for more than a certain specified period, the landlord may re-enter the premises and thereafter the tenancy shall be terminated.

Re-entry may be effected by actual physical entry by the landlord and a grant of a tenancy to a new tenant but this is not the usual practice unless the premises have been abandoned for various practical reasons. In particular, the tenant and his occupiers would generally be unwilling to leave the premises quietly and a breach of the peace, assaults and other nasty incidents may occur thus exposing the landlord to the risk of various criminal and tortious liabilities.

The usual practice is thus to sue for recovery of possession by way of a Writ of Summons.  Upon service of a Writ of Summons claiming for re-possession of the premises, the tenancy is deemed to be forfeited and re-entry into the premises effected. The landlord may in the Writ of Summons not only claim for re-possession but also for rental in arrears, interest on such rental in arrears, double rent from the date of the issue of the Writ of Summons until possession is delivered up and for legal costs.

Explanatory Note: Double rent is a remedy provided under the Civil Law Act whereby a landlord may claim for double the amount of the rent that is usually receivable under a tenancy if a tenant unlawfully holds over.

Obviously, the tenancy is forfeited by such proceedings unless the tenant applies to the Court for relief from forfeiture but that is a separate topic altogether.

© Copyright 2000 Joseph Hoo Morris & Kumar 

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