Practice guide 26: leases – determination

1. Introduction

There are various ways in which a leasehold estate in land may come to an end and affect either a registered title or a title that is the subject of first registration. For example:

• merger of lease – when the leasehold estate is registered and the reversionary estate is either registered, or is the subject of an application for first registration
• cancellation of notice of an unregistered lease from a registered reversionary title
• determination of a registered lease into a reversionary estate, which is neither registered nor the subject of an application for first registration

More specifically the lease itself can determine on:

• merger
• surrender by deed
• surrender by operation of law
• disclaimer
• effluxion of time
• forfeiture
• an order of the court
• determination by notice
• frustration
• enlargement

2. How to apply the Land Registration Act 2002 and Land Registration Rules 2003 and make substantive applications to HM Land Registry

2.1 Points to consider on all applications

You will need to consider and take any appropriate action on the following points.

Original documents are normally required only if your application is a first registration.

A conveyancer may, however, make an application for first registration on the basis of certified copy deeds and documents only. For information about this see practice guide 1: first registrations – Applications lodged by conveyancers – acceptance of certified copy deeds.

If your application is not a first registration, we only need certified copies of deeds or documents you send to us with HM Land Registry applications. Once we have made a scanned copy of the documents you send to us, they will be destroyed. This applies to both originals and certified copies.

However, any original copies of death certificates or grants of probate will continue to be returned.

2.1.1 Documents required

In addition to any documents that may be specified in the sections relating to the method by which the lease has been determined, the following documents will be required, depending on whether the leasehold estate and/or the reversionary estate are registered.

2.1.1.1 Both interests registered

To close a registered leasehold title on determination and cancel the notice of that lease in the registered reversionary title(s), you will need to lodge:

a) form AP1 for closure of the registered leasehold title (unless the lease has determined on enlargement – see Determination: on enlargement) and for removal of notice of the lease from the reversionary title (see also Notes 2 and 3 below)

b) a certified copy of the original lease and/or counterpart lease, if in your possession, or account for its absence

Note 1: This will also apply if the reversionary estate is the subject of an application for first registration.

Note 2: If the AP1 does not refer to the reversionary title we will remove the notice of the lease to bring the register up to date, but we will not issue an official copy of the register for that title.

Note 3: If the determining lease is a concurrent lease you will need to investigate which leases it is concurrent with and refer to those titles in the AP1.

2.1.1.2 Cancellation of notice of an unregistered lease – reversionary estate registered

A registered reversionary title may be subject to a lease, although this lease is not itself substantively registered. The lease will be noted either in the charges register or in a schedule of notice of leases in the registered reversionary title. You may apply for cancellation of the noted lease if you can lodge appropriate documentary evidence to prove that the unregistered leasehold estate has determined. You will need to lodge:

a) form CN1 – see rule 87(1) of the Land Registration Rules 2003 (unless the lease has determined on enlargement – see Determination: on enlargement)

Note 1: You will need to complete panels 9 and 10 appropriately.

Note 2: You will also need to lodge a form AP1 if you are applying for the registration of additional deeds affecting the registered reversionary title.

Note 3: If the lease is noted in the registered reversionary title by way of a unilateral notice (rather than by way of an agreed notice or a notice entered by the registrar in the course of an application for first registration), an application either to cancel or remove the unilateral notice must be made in form UN4 or form UN2 respectively – see practice guide 19: notices, restrictions and protection of third party interests – Cancelling and removing notices from the register for further information).

b) documents of title to the determining leasehold estate, listed on a form DL (in duplicate), showing satisfactory evidence of title to the unregistered lease similar to that required on first registration – see rule 87(1) of the Land Registration Rules 2003. Where the application is made by the landlord, satisfactory evidence of title may be shown by the counterpart lease and copies of any assignments

Note: This will also apply if the reversionary estate is the subject of an application for first registration.

c) a certified copy of the original lease and/or counterpart lease, if in your possession, or account for its absence

Note: You must lodge current Land Charges searches against the name(s) of the owner(s) of the leasehold estate being determined and account for any entries revealed.

2.1.1.3 Closure of registered leasehold title – reversionary estate unregistered

A registered leasehold title may determine into an unregistered reversionary estate in the land, without triggering the first registration of the reversionary estate. To close the registered leasehold title, you will need to lodge:

a) form AP1 (unless the lease has determined on enlargement into a new freehold estate – see Determination: on enlargement)

b) a certified copy of the original lease and/or counterpart lease, if in your possession, or account for its absence

c) an examined abstract of the landlord’s title

2.1.2 Incumbrances affecting the determined lease

You will need to consider any incumbrances affecting the leasehold estate being determined and take any necessary action in respect of them.

If a lease is determined by notice, forfeiture or frustration, all incumbrances will normally end automatically with the determination of the lease and can therefore be ignored.

If a lease is determined by effluxion of time, all incumbrances other than any inferior leases will normally end automatically and can be ignored. An inferior lease will continue to subsist if its term is extended by the Landlord and Tenant Act 1954 or Local Government Housing Act 1989.

If a lease is being enlarged, any incumbrances affecting the leasehold estate will normally be carried forward to the new registered freehold title.

If a lease is being determined by merger, surrender or disclaimer, all incumbrances affecting the leasehold estate which is being determined must be dealt with as appropriate:

• in the case of incumbrances affecting a registered leasehold title, such as registered or noted charges, restrictions and cautions, these should be either discharged, withdrawn or cancelled, and the appropriate documentation lodged to effect this
• similarly, if the leasehold estate is unregistered, any incumbrances, such as a legal charge, which would prevent determination must be either discharged, withdrawn or cancelled, and the appropriate documentation lodged to effect this
• where there is a Form A restriction on a registered leasehold title and/or on a registered reversionary title, it will not be possible to determine the registered leasehold title by merger unless you are able to lodge satisfactory evidence that the applicant holds both estates upon the same trusts. Similarly, if the leasehold estate and/or the reversionary estate are unregistered and there is an indication of a trust, you must lodge satisfactory evidence that the applicant holds both estates upon the same trusts
• where there is a Form A restriction in the registered leasehold title and the lease is being determined by surrender, the surrender is a ‘disposition’ for the purposes of the restriction. If capital money arises from a premium being paid by the landlord to the tenant and the surrender is by a sole registered proprietor, the disposition is caught by the terms of the restriction and the registered leasehold title cannot be closed
• other incumbrances such as subjective easements and restrictive covenants will normally be carried forward to any registered reversionary title, unless they are already substantially repeated on that title

Note 1: Where a lease has been determined by notice, forfeiture or frustration, any inferior leases (meaning any under-leases derived from that lease and any sub-leases derived from such under-leases) will also determine. Where a lease has been determined by disclaimer, see practice guide 35: corporate insolvency. In other cases, an inferior lease which affects the reversionary estate will be noted against any registered reversionary title unless evidence is produced that the inferior lease has also determined and, if the inferior lease is registered, an application is made to close that registered title.

Note 2: Where a leasehold estate is registered with a possessory leasehold class of title, it will not be possible to determine that registered leasehold title unless you lodge form UT1, or the title is otherwise capable of being upgraded to absolute leasehold title. This requirement arises from the fact that a lease registered with a possessory leasehold class of title may be subject to other unregistered interests which might prevent determination.

Note 3: Where an incumbrance consists of a legal charge, it may be possible to deal with the matter by way of a deed of substituted security, and an application made to register it against a registered reversionary title, as appropriate.

2.1.3 Application fee

Your application should be accompanied by the appropriate fee payable under the current Land Registration Fee Order, see HM Land Registry: Registration Services fees.

2.1.4 Notices

It may be necessary for HM Land Registry to serve notice of the application on any person appearing to be affected by it. HM Land Registry will decide whether such notice is necessary and, if so, will arrange for the requisite notice to be served.

2.2 Method of determination

You will need to consider which method of determination applies to the lease which is being determined. The following sections provide details of the various situations you may encounter on dealing with the determination of a lease, together with details of how you should lodge your application in each situation.

3. Determination: on merger

Merger occurs where a leasehold estate in land, together with the reversionary estate, come into the same ownership and are held in the same capacity. The lease is absorbed by the reversionary estate and thus determined. There must also be a clear intention to merge the estates which means an application should expressly be made for this by the tenant applying for (one of the below):

• cancellation of the notice of the lease in form CN1
• closure of the registered leasehold title in form AP1
• merger of an unregistered leasehold estate as part of an application for first registration of the reversionary estate in form FR1 as applicable

If there is no express application on the application form but the intention to merge is stated in a deed, we will proceed with closure of the leasehold estate only if all the conditions for merger are satisfied. If, in this instance, merger is not possible, for example because there is an encumbrance affecting the leasehold estate but evidence of release has not been lodged, we will not proceed with the merger or seek that evidence.

3.1 Merger of a registered lease in a reversionary estate which is either registered or the subject of an application for first registration

A registered leasehold title may merge into a reversionary estate in the land which is either already registered or the subject of an application for first registration. You may apply for closure of the registered leasehold title if both the reversionary estate and the registered leasehold estate are held by the same owner in the same capacity.

3.2 Merger of an unregistered lease in a registered reversionary estate – cancellation of notice of an unregistered lease from the registered reversionary title

You may apply for cancellation of the noted lease if you can lodge appropriate documentary evidence to prove that both the registered reversionary estate and the unregistered leasehold estate are held by the same owner in the same capacity.

Note: You may also apply for merger on form FR1 if the reversionary estate is the subject of an application for first registration and is subject to an unregistered leasehold estate being determined by merger.

3.3 Merger of a registered lease in a reversionary estate which is neither registered nor the subject of an application for first registration

A registered leasehold title may merge into an unregistered reversionary estate in the land. You may apply for closure of the registered leasehold title if you can lodge appropriate documentary evidence to prove that both the unregistered reversionary estate and the registered leasehold estate are held by the same owner in the same capacity.

3.4 Beneficial easements affecting the leasehold estate

The Court of Appeal held in Wall v Collins [2007] EWCA Civ 444 that an easement must be appurtenant to a dominant tenement, but not necessarily to a particular interest in that dominant tenement. So when a lease is determined on merger, the tenant does not automatically lose any rights which were granted to them or to previous tenants for the benefit of the leasehold property; these easements may continue to exist and to be exercisable by the occupier of the reversionary estate for the period for which they were granted.

HM Land Registry will not automatically enter the benefit of such easements in the registered title to the reversionary estate (if registered). However, you may make an application to register the benefit of such easements in the registered title to the reversionary estate, either at the time of merger or subsequently. You will need to lodge:

• form AP1 if the reversionary estate is registered or is the subject of a pending application for first registration
• form FR1 referring in panel 5 to the benefit of the easements if application is made at the same time as an application for first registration of the reversionary estate
• satisfactory evidence that the easement subsists for the benefit of the reversionary estate

Unless the determined lease to which the easements relate has been registered with title absolute and the easements have been entered without qualification in the register for that title, evidence must be lodged to prove the grantor’s power to have granted the easements – see practice guide 62: easements.

Note: Such an application in respect of an easement in the lease should be distinguished from an application in respect of an easement created for the benefit of the reversionary estate by virtue of the operation of section 62 of the Law of Property Act 1925. See practice guide 62: easements - Implied and prescriptive easements.

3.5 How to make the application

In addition to the documents required as stated in Points to consider on all applications, you should lodge any relevant documentation and make any necessary application to register a transfer or conveyance giving rise to the merger (for example, a conveyance of the reversionary estate triggering compulsory first registration).

4. Determination: on surrender by deed

When a tenant surrenders their lease to their immediate landlord, who accepts the surrender, their lease is absorbed by the reversionary estate and thus determined. A document effecting a surrender of a leasehold estate does not have to describe itself as a deed of surrender, but it must:

• be by way of a deed (though if effected by way of another document, it may still take effect as a surrender by operation of law – see Determination: on surrender by operation of law)
• contain wording which clearly shows that the tenant is surrendering the lease

Also, the landlord must consent to the surrender. This can be established by either:

• the lodging of a letter of consent
• the landlord applying to close the registered leasehold title and/or cancel notice of the lease from the registered reversionary title
• the deed being executed by both the landlord and the tenant

4.1 How to make the application

In addition to the documents required, as stated in Points to consider on all applications, you must lodge a certified copy of the deed of surrender or other deed effecting the surrender.

4.2 Stamp Duty Land Tax

For the surrender of leases of property in Wales completed on or after 1 April 2018, see Land Transaction Tax.

A surrender of a lease will normally be a ‘transaction’ for the purposes of Stamp Duty Land Tax (SDLT). You will therefore need to take the appropriate action depending upon the circumstances of the surrender.

Under SDLT, land transactions fall into three categories:

• transactions requiring notification to HM Revenue and Customs and the completion of a land transaction return. HM Revenue and Customs will issue a land transaction return certificate as evidence that SDLT has been accounted for on the transaction notified in the return. You must submit the original certificate or electronic submission receipt to HM Land Registry when registering the transaction
• transactions not requiring notification to HM Revenue and Customs where the transaction was completed on or after 12 March 2008. In respect of a surrender by deed, this would only include:
  • the assignment or surrender of a lease where:
    • the lease was originally granted for a term of 7 years or more
    • the chargeable consideration for the assignment or surrender is less than £40,000
  • the surrender of a lease where the original term granted was less than 7 years and the chargeable consideration for the surrender does not exceed the zero-rate threshold
• transactions that are exempt from SDLT

Where an application is made to register a deed of surrender falling within the ‘not notifiable’ criteria described in the second bullet point above, an explanation of the circumstances should be provided, as HM Land Registry may reject any application that fails to include a certificate where one appears to be necessary.

4.3 Land Transaction Tax

Land Transaction Tax (LTT) relates to transactions affecting land in Wales completed on or after 1 April 2018. For transactions affecting land in Wales completed before that date, see Stamp Duty Land Tax (SDLT).

A surrender of a lease will normally be a ‘transaction’ for the purposes of LTT. You will therefore need to take the appropriate action depending upon the circumstances of the surrender.

Under LTT, land transactions fall into three categories:

• transactions requiring notification to the Welsh Revenue Authority and the completion of a land transaction return. The Welsh Revenue Authority will issue an LTT certificate as evidence that LTT has been accounted for on the transaction notified in the return. You must submit the original LTT certificate to HM Land Registry when registering the transaction
• transactions not requiring notification to the Welsh Revenue Authority. In respect of a surrender by deed, this would only include:
  • the surrender of a lease where:
    • the lease was originally granted for a term of 7 years or more
    • the chargeable consideration for the assignment or surrender is less than £40,000
  • the surrender of a lease where the original term granted was less than 7 years and the chargeable consideration for the surrender does not exceed the zero-rate threshold
• transactions that are exempt from LTT

Where an application is made to register a deed of surrender falling within the ‘not notifiable’ criteria described in the second bullet point above, an explanation of the circumstances should be provided, as HM Land Registry may reject any application that fails to include a certificate where one appears to be necessary.

5. Determination: on surrender by operation of law

When a tenant surrenders their lease to their immediate landlord, who accepts the surrender, the lease is absorbed by the reversionary estate and thus determined. Sometimes a surrender of lease does not take place by deed but is effected by operation of law, as a result of the actions of the parties. In this instance you must supply satisfactory evidence of the acts which imply surrender – see rule 161(1) of the Land Registration Rules 2003. Note that a surrender by operation of law does not take effect following an action by the tenant alone. If the surrender is by deed, see Determination: on surrender by deed.

Examples of surrender by operation of law might be where either:

• the landlord grants a new lease of the same premises to the existing tenant. If the new lease was granted pursuant to section 14 of the Leasehold Reform Act 1967, you must disclose this fact. In a prescribed clauses lease this should be disclosed in clause LR5.2 Note: The extension of the term of an existing lease by means of a deed of variation may take effect as a deemed surrender and re-grant
• the tenant gives up possession of the premises to the landlord and possession is then accepted by the landlord
• the tenant gives up possession of the premises to the landlord and the landlord then grants a new lease of the premises to a third party with the tenant’s consent

Where an application is based upon a surrender by operation of law, the application must be supported by a statutory declaration or statement of truth (see practice guide 73: statements of truth) made by a reliable person with full knowledge of the facts. The declaration or statement must:

• specify the amount of consideration paid for the surrender (if any)
• confirm that no deed of surrender was entered into
• if the tenant was occupying the property and has given vacant possession to the landlord, describe when and how the premises were vacated and the keys returned to the landlord
• if an under-lessee was occupying the property, contain evidence that the landlord is receiving the rent directly from that under-lessee, such as by producing, as exhibits to the declaration, the counterpart under-lease and a copy of the authority requiring the under-lessee to pay the rent directly to the landlord

There are occasions when HM Land Registry will not require a statutory declaration or statement of truth in support of your application. This will be where either:

• the leasehold estate and the reversionary estate are both registered and the application is made by or with the consent of the registered proprietors of both titles, provided the determined leasehold estate is registered with an absolute leasehold or a good leasehold class of title
• the landlord grants a new lease of the same premises to the existing tenant

Note: Where a statutory declaration or statement of truth is not required, HM Land Registry will require a letter confirming that no deed of surrender was entered into. The letter can be from either party’s conveyancer.

5.1 How to make the application

In addition to the documents required, as stated in Points to consider on all applications, you must lodge:

• a statutory declaration or statement of truth (when required)
• any other evidence relating to the surrender, if available, such as a receipt for money paid for the surrender, or an instrument of release of personal liability

5.2 Stamp Duty Land Tax and Land Transaction Tax

See Stamp duty land tax (SDLT) and Land Transaction Tax (LTT).

Additionally, a surrender by operation of law will not require SDLT or LTT evidence where it occurs in the circumstances of:

• a new lease of the same property has been granted in consideration of the surrender
• a deed of variation of lease takes effect as a surrender and regrant

Note: By virtue of section 43(3)(b) of the Finance Act 2003 a surrender by operation of law is a land transaction for the purposes of SDLT. By virtue of sections 3 and 6(1) of the Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Act 2017 a surrender by operation of law is a land transaction for the purposes of LTT.

6. Determination: by disclaimer

When a person becomes bankrupt or a company becomes insolvent, either a trustee in bankruptcy or a liquidator respectively may, by giving the prescribed notice, disclaim certain onerous property, including leases. This has the effect of determining the leases.

Note: Where the disclaimer is a crown disclaimer of a lease which is bona vacantia, see practice guide 35: corporate insolvency - Crown disclaimer of bona vacantia.

6.1 How to make the application

In addition to the documents required, as stated in Points to consider on all applications, you must lodge:

• evidence of either bankruptcy or liquidation (see either practice guide 34: personal insolvency – Registration of the Official Receiver or the trustee in bankruptcy as proprietor or practice guide 35: corporate insolvency – Evidence of liquidation), as applicable
• an official copy of the notice of disclaimer

7. Determination: by effluxion of time

A lease for a fixed period or term will automatically determine when the fixed period expires. However, this rule is subject to the Landlord and Tenant Act 1954 and the Local Government Housing Act 1989, which may prolong the term beyond the date it would otherwise end.

Landlord and Tenant Act 1954 applies to most business leases (and Part 1 of this Act may still apply to a long residential lease at a low rent).

Local Government Housing Act 1989 now applies to most residential tenancies (in place of Part 1 of the Landlord and Tenant Act 1954).

Where an application is based on determination by effluxion of time, the application cannot be completed unless it takes account of this legislation (see How to make the application).

7.1 How to make the application

In addition to the documents required, as stated in Points to consider on all applications, you must lodge:

• confirmation that neither the Landlord and Tenant Act 1954 nor the Local Government Housing Act 1989 affect the lease or that it has determined in accordance with their provisions - where determined by notice, a copy of the notice must be enclosed

Note: Completion of panel 9 of the form CN1 provides this information.

• If the tenant of the leasehold estate has an option to renew the lease (which may, for example, be the subject of a notice in the register of a registered reversionary title), satisfactory evidence that the option has not been, and cannot now be, exercised

8. Determination: on forfeiture

A lease containing a proviso for re-entry or ‘forfeiture clause’ may enable a landlord to re-enter the premises and forfeit the lease, either because the tenant has not paid the rent or has breached some other covenant(s) in the lease.

The landlord may forfeit the lease by taking court proceedings or by peaceable re-entry.

An interested person may apply to the court for relief from forfeiture. However, this is not in itself a valid ground for objection to an application to HM Land Registry based upon determination on forfeiture.

Note 1: An assured tenancy (including an assured shorthold tenancy) cannot be determined by forfeiture.

Note 2: Before proceeding with an application to give effect to a determination of a lease by forfeiture we will usually serve notice on the tenant and on any chargee. This will mean that there will be a delay before the application can be completed.

Note 3: Section 82 of the Coronavirus Act 2020 contains provisions protecting business tenants from enforcement of rights of re-entry or forfeiture during the relevant periods as set out in the Act. Those periods may be amended by regulations. Therefore, applications where the evidence shows that a right of re-entry or forfeiture for non-payment of rent was enforced during the relevant period will not be accepted. For business tenancies the “relevant period”, as amended, runs from 26 March 2020 until 25 March 2022 for both England and Wales (pursuant to the Business Tenancies (Protection from Forfeiture: Relevant Period) (Coronavirus) (England) (No. 2) Regulations 2021) and the Business Tenancies (Extension of Protection from Forfeiture etc) (Wales) (Coronavirus) (No. 3) Regulations 2021 respectively).

8.1 How to make the application

In addition to the documents required, as stated in Points to consider on all applications, you must lodge the following documents.

If the forfeiture is based on a court order: a certified copy of an unconditional order for possession.

Note: The issue of proceedings does not amount to re-entry for these purposes.

If the forfeiture is based on peaceable re-entry:

• evidence by way of a statutory declaration or statement of truth by a reliable person with full knowledge of the facts, proving the facts which, it is claimed, amount to a lawful re-entry on a specified date. This should include details of how re-entry was effected and by whom
• if the tenant is a company in administration, the consent of the administrator or the court
• if the forfeiture is for non-payment of rent, the statutory declaration or statement of truth must establish:
  • whether a formal demand was required and, if so, whether such a demand was made
  • the amount of rent arrears, how long the rent has been unpaid and confirmation that this was sufficient to trigger the proviso for re-entry
• if the forfeiture is for breach of covenant other than non-payment of rent, the statutory declaration or statement of truth must establish:
  • that the landlord served the requisite notice under section 146(1) of the Law of Property Act 1925 upon the tenant on a stated date. If the leasehold estate is not registered, satisfactory evidence that the person served was the tenant must be lodged
  • in the case of a breach of a repairing covenant, that the service of the notice was known to the tenant, or to an under-lessee where the tenant has only a nominal reversion, or to the person who last paid the rent due under the lease, either on their own behalf or as agent for the tenant or under-lessee, and that a time reasonably sufficient to enable the repairs to be executed had subsequently elapsed – see section 18(2) of the Landlord and Tenant Act 1927
  • in the case of a breach of a repairing covenant contained in a lease of which three years or more remained unexpired at the date of the notice served under section 146 of the Law of Property Act 1925, that the notice contained the required statement that the tenant was entitled to serve a counter-notice claiming the benefit of the Leasehold Property (Repairs) Act 1938 and did not do so
  • that the tenant failed to comply with the notice served under section 146 of the Law of Property Act 1925
• if the premises are let as a dwelling, the only lawful method of enforcing a right of re-entry while anyone is lawfully residing there is by getting a court order – see section 2 of the Protection from Eviction Act 1977. Therefore, if the premises comprise a dwelling, the statutory declaration or statement of truth must establish either:
  • that no one was residing in the premises or any part of them
  • if someone was, that they were not lawfully residing there
• if the lease is a residential lease, the statutory declaration or statement of truth must establish that the following provisions either do not apply or have been complied with
• section 81 of the Housing Act 1996, as amended by the Commonhold and Leasehold Reform Act 2002, limits the landlord’s right to forfeit a residential lease where there are arrears of service charges which are disputed by the tenant. The landlord may not exercise the right of re-entry until the service charges have been determined by the appropriate tribunal or a court, and 14 days have elapsed beginning with the day after either:
  • the end of the time for bringing an appeal against the decision
  • if the decision is appealed against, the determination of the appeal and the expiry of the time for bringing a subsequent appeal, or the appeal being abandoned or otherwise ceasing to have effect
• section 166 of the Commonhold and Leasehold Reform Act 2002 provides that a tenant under a long lease of a dwelling is not liable to make a payment of rent under the lease unless the landlord has given the tenant a notice relating to the payment and the date on which they are liable to make the payment is specified in the notice. The notice must comply with the requirements set out in s.166
• section 167 of the Commonhold and Leasehold Reform Act 2002 provides that a landlord under a long lease of a dwelling may not forfeit the lease for failure by the tenant to pay rent, service charge or administration charges unless the amount exceeds a prescribed sum (currently £350), or has been unpaid for a period in excess of a prescribed period (currently three years)
• section 168 of the Commonhold and Leasehold Reform Act 2002 provides that a landlord under a long lease of a dwelling may not serve a notice under section 146 of the Law of Property Act 1925 for breach of covenant by the tenant unless the tenant has admitted the breach, or a period of 14 days has elapsed after the appropriate tribunal or a court has determined that the breach has occurred.

Note: Any relevant documentation should be produced as exhibits to the declaration or attachments to the statement of truth

9. Determination of assured tenancies: following a court order

An assured tenancy (including an assured shorthold tenancy) is a tenancy of a home created after 15 January 1989 which meets the conditions of section 1 of the Housing Act 1988. Schedule 1 to the Housing Act 1988 contains exceptions which prevent a tenancy becoming an assured tenancy.

A landlord can determine an assured tenancy only by getting a court order for possession under section 7 of the Housing Act 1988 or, in the case of a fixed-term tenancy, by notice under a ‘break-clause’; it cannot be determined by forfeiture. Because the tenancy is not determined by forfeiture it is not possible to claim relief against forfeiture. Any incumbrances against the leasehold interest will fall when the lease determines.

An assured tenancy will determine when the court order is executed (see section 5(1A) of the Housing Act 1988).

An application to determine a lease by an order for possession made under section 7 of the Housing Act 1988 should be accompanied by:

• a certified copy of the court order
• the sheriff’s return, or a statutory declaration or statement of truth (see practice guide 73: statements of truth) confirming that the order has been executed

10. Determination: by notice

A lease for a fixed term may contain an option, usually called a ‘break clause’, allowing either one or both parties to the lease to determine the lease before the expiry of the fixed term. The clause is usually only exercisable by written notice.

10.1 How to make the application

In addition to the documents required, as stated in Points to consider on all applications, you must lodge evidence of the determination of the lease by notice in accordance with the terms of the lease. This can take the form of either:

• a copy of the notice receipted by the landlord/tenant to whom it was sent
• a certificate by the applicant’s conveyancer stating that a particular notice was served on the landlord/tenant detailing the method and date of service. You should enclose a copy of any notice with the certificate
• a statutory declaration by the applicant, exhibiting a copy of the notice served and detailing the method and date of service

11. Determination: on frustration

A lease may be determined by frustration, that is, the occurrence of an unforeseen event that makes performance impracticable. However, the instances in which the doctrine of frustration can apply to determine a lease will be rare. Any application based upon determination on frustration will be considered on its individual facts.

Note: This section relates to the automatic determination of a lease by the doctrine of frustration, and not to the determination of a lease by notice on the occurrence of an event (such as the damage of the premises by fire beyond repair) referred to in a ‘frustration clause’ in the lease.

12. Determination: on enlargement

A tenant who holds the residue of a long lease of land may, under certain conditions, ‘enlarge’ it into a freehold.

To be capable of enlargement, the lease must satisfy all of the following requirements (see section 153 of the Law of Property Act 1925):

• the unexpired residue of the term of the lease must have at least 200 years left to run
• the original term must have been for at least 300 years
• there must be no trust or right of redemption in favour of the freeholder or other reversioner
• there must be no rent, or merely a peppercorn or other rent having no money value, or any rent must have ceased to be payable
• there must be no right of re-entry for condition broken
• the lease must not be a sub-lease out of a lease which is itself incapable of enlargement

Note: A rent of no more than £1 a year, which has not been collected or paid for 20 years or more, is deemed to have ceased to be payable. Evidence by way of statutory declaration should be lodged if this provision is relied on.

On enlargement, the land remains subject to the same trusts and covenants that affected the original lease.

The effect of enlargement on the former landlord’s legal estate is unclear. Accordingly, if the landlord’s title is registered it will not be closed. This means there will be more than one registered freehold estate in the same piece of land.

12.1 How to make the application

In addition to the documents required, as stated in Points to consider on all applications, you must lodge:

• form FR1 – whether the lease being enlarged is registered or unregistered (and whether or not there is an existing registered freehold title)

Note: No additional fee is payable on first registration, in respect of the enlargement itself

• a certified copy of the original lease, or an examined abstract of the lease, if the original lease is not available

Note: If neither the original lease nor full evidence of its contents is lodged, HM Land Registry may only be in able to grant a qualified freehold class of title, to reflect the possibility that the lease may not be capable of being enlarged

• the deed of enlargement (which may have been endorsed on one of the unregistered title deeds relating to an unregistered lease which is being enlarged)
• a statutory declaration or statement of truth as to non payment of rent, if applicable

Note: No separate application is required in form AP1 to close the existing registered leasehold title and no separate application is required in form CN1 to cancel notice of the unregistered lease if the reversionary estate is registered.

As enlargement might not be possible, for example, if we are not satisfied on our examination that the requirements of section 153 of the Law of Property Act 1925 have been met, you may wish to consider applying to register any registrable disposition in respect of the existing leasehold estate first before applying separately for enlargement. This could help ensure the registrable disposition is at least completed by registration.

13. Things to remember

Always check that you have:

• requested merger, where appropriate, either on form AP1, form FR1 or form CN1
• sent in the correct application form – either form AP1, FR1 and/or CN1
• checked if both estates currently are held in the same ownership and same capacity, on an application based on merger
• lodged appropriate documentary evidence, such as an abstract of title, where a leasehold estate or a reversionary estate is unregistered, to prove title
• dealt with the appropriate SDLT or LTT provisions relating to a determination by surrender
• lodged any necessary HM Revenue & Customs or Welsh Revenue Authority forms
• ensured all the incumbrances on a leasehold estate being determined by merger, surrender or disclaimer are suitably discharged, withdrawn or cancelled and you have lodged appropriate documentary evidence with your application to account for this
• lodged a certified copy and/or counterpart lease
• lodged a statutory declaration (where applicable), and enclosed any exhibits referred to
• lodged all supporting evidence required
• enclosed the appropriate fee (see HM Land Registry: Registration Services fees
• Important: please check clerical details in all forms and deeds (especially charges and mortgages) and pay particular attention to all dates, property descriptions, title numbers, and full names of parties, especially where they appear in more than one deed