Commercial Lease Breaches: "Once and for All" vs. "Continuing" Breaches and Their Impact on Enforcement Option

By David Burns, Senior Litigation Partner at Ronald Fletcher Baker LLP D.Burns@rfblegal.co.uk 

Managing a commercial property portfolio requires maintaining a balance between preserving asset value and managing tenant relationships. When a tenant breaches a covenant within a commercial lease agreement, the landlord has access to several legal remedies, the most potent of which is déchéance (the right to re-enter the property and terminate the lease prematurely). 

However, exercising enforcement options effectively requires a clear understanding of property law. A central pillar of lease enforcement is distinguishing between a “once and for all” breach and a “continuing” breach. 

Failing to properly classify a tenant’s breach, or taking actions without understanding its nature, can trigger the doctrine of waiver. In practice, an unintentional waiver can permanently strip a landlord of their right to terminate a lease, leaving them with limited alternatives. This article provides a comprehensive analysis of both types of breaches, traces their legal foundations through key case law, and outlines practical enforcement strategies for landlords and tenants. 

1. Defining the Legal Taxonomy: “Once and for All” vs. “Continuing” Breaches 

The distinction between these two categories depends entirely on the element of time and the structural nature of the tenant’s obligation. 

Once and for All Breaches 

A once and for all breach is an act or omission that occurs and is fully completed at a single, distinct point in time. While the adverse consequences of the breach may persist indefinitely, the legal infraction itself is not ongoing. The tenant’s failure to perform their obligation happens on a specific date, and the landlord’s right of re-entry is triggered immediately by that singular event. 

Continuing Breaches 

Conversely, a continuing breach is an ongoing violation that occurs continuously, day after day, for as long as the tenant remains in a state of non-compliance. Legally, the tenant commits a completely new breach of the lease agreement every single day the breach persists. The importance of this distinction becomes clear when assessing whether a landlord has inadvertently affirmed the ongoing existence of the lease. 

2. Examples of Lease Breaches & Practical Categorisation 

The following table provides a comparison of common commercial lease covenants and how English courts generally tend categorise the breach. 

Covenant Type	Specific Breach Example	Legal Classification	Analytical Justification
Payment of Rent	Failure to pay the quarterly or monthly rent on the contractually designated due date.	Once and for All	The breach occurs and is fully complete the moment the grace period expires on the due date.
Alienation (Subletting/Assignment)	Executing a sublease or assigning the leasehold interest to a third party without the landlord’s written consent.	Once and for All	The breach is complete at the precise moment the legal transfer document or underlease is executed.
Alterations	Carrying out structural alterations or fit-out works without obtaining a Licence for Alterations.	Once and for All	The breach is executed when the unauthorized physical works are performed.
Time-Specific Obligations	Failing to execute a specific obligation (e.g., painting the exterior) by a strict deadline set out in the lease.	Once and for All	The breach is bound to the passage of that specific calendar date.
Repair & Maintenance (Dilapidations)	Allowing the building fabric, roof, or internal spaces to fall into disrepair during the term.	Continuing	A fresh breach occurs each day the property remains un-repaired.
Property User Restrictions	Using an industrial unit for retail purposes, or an office unit for residential usage, in violation of the user clause.	Continuing	Every day the prohibited commercial activity operates, a new infraction arises.
Insurance Maintenance	Allowing the required commercial building insurance or public liability policy to lapse.	Continuing	Each day the property sits unprotected without valid cover constitutes a separate breach.

3. The Doctrine of Waiver: The Core Point of Friction 

To understand why this classification matters, one must examine the doctrine of waiver. 

Waiver occurs when a landlord, with clear knowledge of a tenant’s breach, performs an unequivocal act that communicates an intention to treat the lease as remaining in force. The law does not permit a landlord to take conflicting legal positions—they cannot treat the lease as alive for the purpose of collecting income, while simultaneously claiming it is dead for the purpose of evicting the tenant. 

The classic requirements for a waiver of forfeiture, as set out by the courts, are: 

1. Knowledge: The landlord must have actual or constructive knowledge that a breach has occurred. 

2. Unequivocal Act: The landlord must perform an act that clearly recognizes the lease as continuing. 

3. Communication : The act must be communicated directly or indirectly to the tenant. 

The Differential Impact of Waiver 

On Once and For All Breaches 

If a landlord waives their right to forfeit following a once and for all breach, the right to forfeit for that specific breach is permanently lost. 

For instance, if a tenant assigns the lease without consent, and the landlord subsequently demands the next quarter’s rent with full knowledge of the assignment, the landlord has waived the breach. They can never forfeit the lease for that specific assignment. Their remaining remedies are limited to suing for monetary damages or seeking an injunction. 

On Continuing Breaches 

If a landlord waives their right to forfeit for a continuing breach, the waiver only protects the tenant up to the exact date of the waiving act. 

Because a brand-new breach occurs automatically the following morning, the landlord’s right to forfeit is instantly revived. For example, if a landlord accepts rent knowing the property’s roof is damaged and in breach of the repair covenant, they waive the right to forfeit for the past disrepair. However, since the roof remains broken the next day, a new breach arises, allowing the landlord to immediately issue enforcement proceedings based on that new day’s non-compliance. 

4. Analysis of Landmark Judicial Precedents 

The distinction between these types of breaches has been shaped significantly by English case law. 

Matthews v Smallwood [1910] 1 Ch 777

This case establishes the foundation for the modern doctrine of waiver. 

• The Facts: A tenant entered into an unauthorised sublease, which constituted a clear breach of the lease’s alienation clause. The landlord, through his managing agent, subsequently accepted rent payments despite having access to information that indicated an unauthorized party was in possession of the premises. 

• The Judgment: Parker J delivered the definitive statement on waiver, noting that once a landlord has full knowledge of the facts giving rise to a right of re-entry and performs an unequivocal act recognizing the continued existence of the lease, the right of forfeiture is gone. 

• The Core Principle: It confirmed that unauthorised alienation is a classic once and for all breach. The single act of creating the underlease finalized the infraction, meaning the subsequent acceptance of rent permanently barred the landlord from forfeiting the lease for that specific breach. 

Segal Securities Ltd v Thoseby [1963] 1 QB 887 

This case clarified how demanding or accepting rent operates as an immediate waiver. 

• The Facts: The tenant breached a covenant regarding the specific usage of the property. The landlord, aware of this ongoing issue, sent a formal demand for a future period of rent. The landlord later attempted to backtrack, arguing that a mere demand for rent, without physical receipt of the funds, should not count as a full waiver. 

• The Judgment: The court held that a formal demand for rent operates as an unequivocal affirmation of the lease’s existence up to the end of the period for which that rent is demanded. 

• The Core Principle: For a once and for all breach, a rent demand sent with knowledge of the infraction waives forfeiture completely. For a continuing breach (such as unauthorized user clauses), the demand waives the right to forfeit only up to the final date of the rent period demanded. 

Expert Clothing Service & Sales Ltd v Hillgate House Ltd [1986] Ch 340 

This Court of Appeal decision explored the interplay between the nature of a breach and whether it is legally capable of being remedied under statutory enforcement regimes. 

• The Facts: The lease contained a strict positive covenant requiring the tenant to reconstruct a portion of the commercial premises within a precise time frame (a specified date). The tenant missed the deadline completely. The landlord served a Section 146 Notice under the Law of Property Act 1925, asserting the breach was irremediable and moving directly toward forfeiture. 

• The Judgment: The Court of Appeal looked closely at whether missing a deadline was a once and for all breach and whether it could be remedied by late performance. The court determined that while the breach occurred “once and for all” when the deadline passed, it was still capable of remedy by doing the work late, provided the landlord was not severely harmed by the delay. 

• The Core Principle: This case reminds landlords that even if a breach is classified as once and for all (failing to complete an action by a set date), it does not automatically mean it is irremediable. Landlords must still give tenants a fair opportunity to fix the issue via a Section 146 Notice before executing forfeiture. 

5. Relevance and Impact on Enforcement Options 

The legal classification of a lease breach directly shapes the procedural roadmap a landlord must follow to enforce their rights. 

                    Is the Landlord aware of the breach? 

                                   │ 

                                   ▼ 

                 Identify the Legal Classification 

                                   │ 

         ┌─────────────────────────┴─────────────────────────┐ 

         ▼                                                   ▼ 

Once and for All Breach                               Continuing Breach 

 (e.g., Rent, Alienation)                          (e.g., Repair, User) 

         │                                                   │ 

         ▼                                                   ▼ 

Landlord must choose:                              Waiver only applies to 

Forfeit OR Affirm Lease?                             past days’ actions. 

         │                                                   │ 

         ▼                                                   ▼ 

Any act of validation                              Fresh breach arises daily. 

(e.g., accepting rent)                             Landlord retains the 

PERMANENTLY kills forfeiture.                       right to forfeit tomorrow. 

Forfeiture Mechanisms 

• For Non-Payment of Rent: This is a once and for all breach. Most modern commercial leases contain a standard clause allowing the landlord to forfeit by peaceful physical re-entry once rent is overdue for a specific number of days (usually 14 or 21 days), without needing to serve a formal statutory notice. However, if the landlord accepts even a partial rent payment after the right to forfeit arises, that right is lost for that specific period’s arrears. 

• For Other Breaches (Section 146 Notices): For all other breaches (whether once and for all or continuing), the landlord must comply with Section 146 of the Loi de 1925 sur le droit immobilier. The landlord must serve a formal Section 146 Notice that specifies the breach, requests it be remedied (if remediable), and demands financial compensation. 

The Repair Trap: The Leasehold Property (Repairs) Act 1938 

When dealing with a continuing breach of a repairing covenant, landlords face an additional statutory hurdle: the Leasehold Property (Repairs) Act 1938. 

If the lease was granted for a term of more than seven years and has at least three years remaining, a Section 146 Notice served for disrepair triggers a statutory right for the tenant to claim the protection of the 1938 Act. The tenant can serve a counter-notice within 28 days. Once served, the landlord cannot forfeit the lease or claim damages without first obtaining explicit permission from the Court. This makes enforcing continuing repair breaches considerably more time-consuming and costly than dealing with a straightforward once and for all breach like non-payment of rent. 

Alternative Remedies That Avoid Waiver Issues 

If a landlord accidentally waives their right to forfeit, or if forfeiture is commercially undesirable (e.g., in a weak market where finding a replacement tenant is difficult), alternative options can be explored: 

1. Recouvrement des arriérés de loyer commercial (CRAR) : A statutory procedure allowing landlords to instruct enforcement agents to enter the premises and seize tenant-owned goods to clear outstanding rent arrears. Avertissement : Utilising CRAR requires recognizing the ongoing existence of the lease, which automatically waives the right to forfeit for those specific rent arrears. 

2. Jervis v Harris Clauses (Self-Help Repair Rights): Many well-drafted commercial leases include a Jervis v Harris clause. If a tenant commits a continuing breach of repair, this clause allows the landlord to enter the property, perform the necessary repairs, and recover the total cost from the tenant as a straightforward debt rather than a complex claim for damages. Crucially, invoking a Jervis v Harris clause does not require a Section 146 Notice and bypasses the restrictions of the Leasehold Property (Repairs) Act 1938. 

3. Claims for Damages or Injunctions: Landlords can issue a claim seeking compensation for financial losses caused by the breach, or apply for an injunction to force compliance (such as halting an unauthorized use). 

6. Practical Strategic Tips 

Landlords may wish to consider the following tips (but each case will depend on its own facts):  

• Implement an Immediate “Rent Stop”: The moment your management team becomes aware of a potential tenant breach (especially a once and for all breach like unauthorized subletting or alterations), you should consider instantly instructing your finance department to put a total block on the accounts. Do not issue demands, do not accept automated direct debits, and do not process service charge payments. 

• Instate “Without Prejudice” Communication Protocols: If you must correspond with a tenant regarding a breach while deciding whether to forfeit, ensure all letters and emails are explicitly marked “Without Prejudice and Without Prejudice to the Right of Forfeiture.” While not an absolute shield against waiver, it provides helpful context regarding your intent if challenged in court. 

• Audit Building Usage and Structural Changes Regularly: Conduct routine inspections of the premises. Catching unauthorized alterations or changes in use early allows you to take action before long-term rent collection inadvertently waives your right to object. 

Pour les locataires 

• Force a Waiver Where Possible: If you have committed a once and for all breach (such as making an alteration without a formal licence) and want to secure your position, try to get the landlord or their agent to acknowledge the lease’s continuation. Paying your next cycle of rent through standard channels after the landlord becomes aware of the issue can trigger a legal waiver, effectively removing their option to forfeit the lease for that specific mistake. 

• Respond Promptly to Section 146 Notices: If you receive a Section 146 Notice regarding a continuing breach (like disrepair), review it alongside your legal team immediately. Check if you qualify for the protection of the Leasehold Property (Repairs) Act 1938, and serve a formal counter-notice within the 28-day window to halt sudden forfeiture actions. 

• Apply Proactively for Relief from Forfeiture: If a landlord takes unexpected steps to forfeit the lease via physical re-entry, act quickly to file a claim in court for relief from forfeiture. If you can remedy the breach (e.g., by paying all outstanding rent and covering the landlord’s legal costs), courts generally prefer to reinstate the lease rather than permit a permanent eviction. 

• Keep Complete Records of All Landlord Communications: Document every instance where a landlord or managing agent visits the property, views an alteration, or speaks with your staff. This evidence can prove crucial in establishing that the landlord had full knowledge of a breach prior to demanding or accepting rent. 

Nous contacter – David Burns, associé principal chargé du contentieux  

Senior Litigation Partner David Burns has extensive experience acting on behalf of Landlords and tenants regarding breaches of commercial leases.  For enquiries on this topic, please contact David Burns via email d.burns@rfblegal.co.uk ou composez directement le 0207 467 5751.