Pirabakaran v Patel

I recently had an occasion to look at the case authority of Pirabakaran v Patel decided by the Court Appeal in 2006.

In the case, the landlord had let to the tenant a mixed use (commercial/residential) property.

The tenant had defaulted on the Lease terms and the Lease provided a clause that allowed the landlord to forfeit by re-entering the property provided this was peaceable.

The landlord re-entered the commercial part of the property and took procession. The landlord did not attempt to evict the tenant from the residential part of the property but instead he brought Court proceedings to recover possession of the residential element.

At the initial Trial, the Judge found in the landlord’s favour. However, the tenant appealed and the Court of Appeal decided that the landlord’s actions in recovering the commercial element of the property were unlawful, even though this has not affected the tenant’s right to live in the residential part of the property unhindered.

Would the position be different, however, if the Court had made an Order for Possession of the whole property and the landlord had decided to effect peaceable re-entry of the commercial part of the premises, rather than issue a Writ or Warrant to enforce the Possession Order, where the commercial part of the premises is self-contained with a separate entrance to the residential premises?