- Laws of Fiji

Last Updated: 1 August 2020

[PL 105] Restrictions on and relief against forfeiture of leases105

105

(1) A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition, express or implied, in the lease shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice—

(a)specifying the particular breach complained of; and
(b)if the breach is capable of remedy, requiring the lessee to remedy the breach; and
(c)in any case, requiring the lessee to make compensation in money for the breach,

and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.

(2) Where a lessor is proceeding, by action or otherwise, to enforce a right of re-entry or forfeiture, the lessee may, in the lessor’s action, if any, or in any action brought by himself or herself, apply to the court for relief and the court may grant or refuse relief, as the court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty or otherwise, including the granting of an injunction to restrain any like breach in the future, as the court, in the circumstances of each case, thinks fit.

(3) A lessor shall be entitled to recover as a debt due to him or her from a lessee, and in addition to damages, if any, all reasonable costs and expenses properly incurred by the lessor in the employment of a barrister and solicitor or a surveyor or valuer, or otherwise, in reference to any breach giving rise to a right of re-entry or forfeiture which, at the request of the lessee, is waived by the lessor, or from which the lessee is relieved, under the provisions of this section.

(4) Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any covenant, proviso or stipulation in a lease, or for non-payment of rent, the court may, on application by any person claiming as sub-lessee any estate or interest in the property comprised in the lease or any part thereof, either in the lessor’s action, if any, or in any action brought by such person for that purpose, make an order vesting, for the whole term of the lease or any less term, the property comprised in the lease or any part thereof in any person entitled as sub-lessee to any estate or interest in such property upon such conditions as to execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, giving security or otherwise, as the court in the circumstances of each case may think fit, but in no case shall any such sub-lessee be entitled to require a lease to be granted to him or her for any longer term than he or she had under his or her original sublease.

(5) For the purposes of this section—

lease: includes an original or derivative sublease; also an agreement for a lease where the lessee has become entitled to have his or her lease granted;

lessee: includes an original or derivative sub-lessee, and the persons deriving title under a lessee; also a grantee under any such grant as aforesaid and the persons deriving title under him or her;

lessor: includes an original or derivative sub-lessor, and the persons deriving title under a lessor; also a person making such a grant as aforesaid and the persons deriving title under him or her;

sublease: includes an agreement for a sublease where the sub-lessee has become entitled to have his sublease granted;

sub-lessee: includes any person deriving title under a sublease.

(6) This section shall apply although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any Act.

(7) For the purposes of this section, a lease limited to continue as long only as the lessee abstains from committing a breach of covenant shall be and take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a breach.

(8) The provisions of this section shall not extend—

(a)to a covenant or condition against assigning, subletting, parting with the possession or disposing of the land leased; or
(b)in the case of a mining lease, to a covenant or condition for allowing the lessor to have access to or inspect books, accounts, records, weighing machines or other things, or to enter or inspect the mine or the workings thereof; or
(c)to a condition for forfeiture on the bankruptcy of the lessee or on taking in execution of the lessee’s interest; or
(d)to a condition for forfeiture for breach of any liquor or distillation laws; or
(e)to any contract of tenancy of agricultural land which is subject to the provisions of the Agricultural Landlord and Tenant Act 1966.

(9) This section shall not, save as otherwise mentioned, affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent.

(10) This section shall have effect notwithstanding any stipulation to the contrary.