In Thirunavukkrasu v Brar and another  EWHC 2461 (Ch), Marcus Smith J accepted that the commercial rent arrears recovery procedure (referred to as “CRAR”) introduced by the Tribunal, Courts and Enforcement Act 2007 acts as a waiver of the right to forfeit, and thus the right to forfeit is lost upon the commencing of CRAR. This was a point that had long been suspected by practitioners to be the case, but had not actually considered by the Courts since the abolishment of the common law remedy of distress and the introduction of CRAR. The Court has confirmed that, on a proper interpretation of the 2007 Act, when a landlord commences the CRAR procedure it is electing a remedy that is incompatible with the necessary element of forfeiture, that the lease has come to an end. As such, the remedy of forfeiture is no longer available for the arrears that the CRAR seeks to recover, as the entitlement to rely upon that particular breach has been waived by recognising the lease is continuing.
Aaron Walder acted for the successful Tenant / Respondent.