How timing and conduct can impact relief from forfeiture applications

This article was co-authored by Sonny James, Paralegal, Real Estate Disputes

A recent case from the High Court which looked at an application for relief from forfeiture of a lease, following a possession order, provides a valuable reminder on how both timing and the tenant’s conduct can impact relief from forfeiture applications under Section 146 of the Law of Property Act 1925.

The case: Mentmore Golf Investments Ltd v Gaymer [2025] EWHC 2604 (Ch)

The property at the centre of these proceedings was a golf course with Mr. Gaymer, the freeholder, who had previously obtained a possession order for the property in question. Mentmore Golf Investments Ltd, acting as mortgagee, in response made an application for relief from forfeiture, which is an equitable discretionary remedy effectively asking the Court to “undo” the forfeiture that has taken place.

Subsequently, the possession order which had previously been obtained was executed.

This sequence of events and particularly the order in which they happened in, raised pressing questions which could only be clarified by judicial intervention.

What the Court held

The core issue was whether Mentmore Golf Investments Ltd (“Mentmore”), which had a mortgage over a golf course lease, was allowed to ask the court for relief from forfeiture after the landlord had already taken back possession from the tenant.

The judge at first instance said Mentmore’s claim had to fail because once the landlord had obtained and executed (carried out) a possession order, the landlord was no longer “proceeding” to end the lease. Under the law, relief could only be asked for while the landlord was still in the process of forfeiting. The judge said that because Mentmore had not applied to set aside the possession order, its claim was hopeless.

Timing

On appeal, the court disagreed. The key issue was when the relief claim was issued. Mentmore had filed its claim before the landlord had actually executed the possession order. That meant the landlord was still “proceeding”, and Mentmore had technically filed in time. Accordingly, the court did have jurisdiction to hear the claim.

Despite this seemingly promising part of the decision from Mentmore’s perspective, that didn’t save the claim for relief.

Conduct

The evidence showed that Mentmore, the various tenant companies, and the family trusts behind them were all effectively controlled by the same person. The appeal court found that Mentmore’s behaviour was an abuse of the court process. Over the course of many years, companies were switched, liabilities avoided, and claims issued late all with one desired goal in mind, to keep the landlord from recovering the property and to drag the dispute out. Mentmore knew about the forfeiture proceedings from the start but deliberately stayed silent until the last moment.

In this case, although the reasoning at first instance on timing was held to be wrong, the claim was still seen as an overall abuse of the judicial system and the appeal was therefore dismissed.

Why is this ruling important?

Despite the application for relief failing in this case, it is still a useful authority on applications for relief of forfeiture.

It has clarified the timing element of relief applications in this context, making clear that an application for relief from forfeiture under Section 146 of the Law of Property Act 1925, will meet the “timing test” despite the presence of an unexecuted possession order. The fact it had not yet been executed at the time of the application meant the Lessor was still deemed to be ‘proceeding’, thus in principle making clear what matters is the date of the application for relief, not the date of the hearing.  Although a landlord may have a possession order, until it is executed, applications for relief from forfeiture can still be made.

This case had the dual effect of highlighting that conduct is a key element in applications for relief and the Court may well exercise its judicial discretion to disallow relief, even if the timing requirements are met by the applicant. As stipulated above, the Court will scrutinise the real motives of the applicant, which could result in the application failing.

This case shows the Courts using their discretionary powers in applications for relief from forfeiture under Section 146 of the Law of Property Act 1925 and also reinforces that courts will not grant relief when it deems that the system is being improperly used.

How Hamlins can help

The Hamlins Real Estate Disputes team has expertise in both commercial and residential matters. We seek to obtain the best outcome possible for every client, no matter how big or small the issue may be. If you would like a conversation to find out how we might help you, please get in touch.