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PropertyThursday 20 June 2024

Judgment handed down in The Tropical Zoo Ltd v The Mayor and Burgesses of the London Borough of Hounslow

Last month, the High Court handed down judgment in the matter of The Tropical Zoo Ltd v The Mayor and Burgesses of the London Borough of Hounslow [2024] EWHC 1240 (Ch).

The case concerned approximately 45 acres of land close to Heathrow Airport of which the Defendant, a local authority, granted a 125-year lease to the Claimant, a zoo operator, in 2012. It was a term of the Lease that the Claimant would construct a zoo building (for which planning permission was simultaneously granted) on part of the land within 2 years.

In 2020, with the Zoo Building remaining unbuilt, the Defendant served two notices under s.146 of the Law of Property Act 1925 requiring the tenant to remedy its breaches of the Lease. The Claimant issued proceedings seeking declarations that the Lease was not liable to be forfeit because (among other matters) the Defendant was said to have waived any right of forfeiture by acceptance of rent, or alternatively that it should be granted relief from forfeiture.

Following a 5-day trial, Bacon J found in favour of the Defendant, holding that it was entitled to forfeit the Lease, and that the Claimant should not be granted relief.

The judgment will be of particular interest to practitioners for its discussion of the test to be applied in cases of waiver of the right to forfeit by delayed return of rent, the interaction between the law of agency and the law of waiver, the question of whether waiver can occur during the lifetime of a s.146 notice, and as an example of a case in which the court declined relief from forfeiture.

The Claimant has been granted permission to appeal to the Court of Appeal.

Julian Greenhill KC and Ernest Leung acted for the Claimant, instructed by Forsters LLP. Martin Hutchings KC and Daniel Petrides acted for the Defendant, instructed by Bevan Brittan.

Read the full judgment here

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