On 24 May 2024, the High Court handed down judgment in Tropical Zoo Ltd v Mayor and Burgesses of the London Borough of Hounslow (2024). This case on breaches of lease covenants has the potential to change lease drafting and give rise to a new wave of arguments on waiver. 

David Jones, Associate in WBD's Property Disputes team, gives comment.

Types of breach

The law categorises breaches of lease covenants in several different ways. Here, the key categorisation was whether the breach was a "once-and-for-all" breach or a "continuing" breach. This is a key distinction because:

  • Where a breach is once-and-for-all, the landlord can waive the right to forfeit the lease for the breach (e.g. by demanding rent after the breach), and would not then be able pursue forfeiture at a later date, whereas
  • A continuing breach, even if waived, will accrue afresh each day, allowing further opportunity to forfeit the lease.

Over the years, case law has placed many of the standard lease covenants into one or other for these categories. Broadly, most lease clauses fall into the once-and-for-all category, particularly where a lease requires something to be done by a certain date.

Whilst dependant on the exact wording in any lease, the following covenants are generally understood to be once-and-for-all breaches and therefore once breached, the landlord must be careful not to waive a right of forfeiture if they intend to forfeit:

  • To put in repair or carry out repairs by a specific date
  • Not to make alterations or display signs without consent
  • To pay rent or other sums due under a lease (e.g. service charges and insurance)
  • Alienation covenants i.e. not to assign, sublet or part with possession (though this is not the case for sharing of occupation.


A landlord can waive the right to forfeit even without knowledge that their actions will affect such waiver. However, in order to do so, the landlord must:

  • Have knowledge of the breach
  • Perform an act recognising the lease as continuing
  • Communicate that act to the tenant.

If the above are fulfilled, the ensuing waiver cannot be taken back. Various acts have been repeatedly found to recognise a lease as continuing following a breach, including:

  • Demand and acceptance of rent
  • Use of the Commercial Rent Arrear Recovery (CRAR) procedure (because this requires a lease to be current)
  • Service of a notice to quit or section 25 notice.

The Tropical Zoo case

The lease in this case contained a number of non-standard provisions. Of particular note was a covenant to "remedy any breach of a Tenant Covenant Notified by the Landlord to the Tenant as soon as possible and in any event within two months after service of the Notice.”

The lease contained obligations on the tenant to erect a zoo building by 2014. The landlord did not forfeit the lease following the tenant's failure to do so, and continued to accept and demand rent. In November 2020 the landlord served a notice under the non-standard covenant above requiring that the tenant remedy this breach within two months. The tenant did not, and the landlord sought to forfeit, resulting in the claim. There were further demands of rent by the managing agent despite being instructed by the landlord not to do so.

Following a number of arguments, the court ruled that the landlord had not waived the breach that arose following failure to remedy by January 2021.

Why this case matters – waiver

As this article highlights, the drafting included is unusual and no doubt included due to the bespoke nature of the lease here – ie a local authority granting a lease, likely at a discount with a view to the provision of a zoo within its area.

However, this drafting allows landlords a second bite of the cherry and to forfeit a lease for a breach where the right to forfeit for that breach has previously been waived. This high court confirmation that the drafting is effective might mean that we see an increase in this clause being incorporated into lease drafting by landlords, as this allows them to forfeit at a more convenient time, such as where a new tenant is lined up or market conditions have improved, whilst maintaining tenant liability until that time.

A well-advised tenant is not likely to agree to the inclusion of this drafting, but where tenants are unrepresented or the other terms of the deal make the risks worthwhile it might become increasingly common.

Health warnings

  • In relying on a similar clause a court might try to distinguish this judgment on the basis that the drafting in this lease was clearly a result of the intended relationship between the parties, or the fact that the clause was in the context of a lease that also tried to contract out of the ability to waive a right to forfeit
  • The breach in this claim was remediable (the zoo building could have been built late, albeit that probably wasn't feasible within two months), but it's not clear whether this clause would be effective for breaches that can't be remedied, such as a failure to obtain consent to assignment.

Why this case matters – agents

Most landlords use a managing agent to demand and collect rent. It had previously been thought that the acceptance of rent would be sufficient to amount to a waiver. 

Here, the court reviewed the authority of the landlord’s agent, and held that it was not an agent with full authority to manage the property on behalf of the landlord, but was merely performing the ‘treasury function’ of demanding and collecting rent. In practice, this is likely to see a distinction between managing agents and asset managers. 

It could well be argued that on this reading acceptance of rent by a pure managing agent (i.e. appointed only to perform the "treasury function" of accepting and demanding sums due under the lease) could never amount to a waiver, unless coupled with other conduct by the landlord/asset manager, unless the demand and acceptance continued over a greater period of time. 

There is also likely to be room for further argument where a managing agent exercises additional functions under the Lease in addition to "treasury functions", such as administering the services, or raising issues of breach with tenants.

This article is for general information only and reflects the position at the date of publication. It does not constitute legal advice.