TENANT default is one of the main symptoms of the recession, but when tenants face financial difficulties, one of the most useful and often forgotten tools available to their landlord is the ability to recover money due for any breach of covenant (for example, non-payment of rent or disrepair) from either a former tenant or his guarantor.

Landlords need to consider this option sooner rather than later, as Section 17 of the Landlord and Tenant (Covenants) Act 1995 states that neither the former tenant nor his guarantor shall be liable after a period of six months has expired from when the charge becomes due, unless a notice has been served.

Where there are continuing arrears, a landlord may need to serve a notice every six months to cover payments in the preceding period.

Landlords need to bear in mind, however, the potential for any former tenants to claim an overriding lease under Section 19 of the Act within 12 months of making the payment, providing the tenancy has not already been determined.

Although a landlord needs to be aware of this possibility, he may not consider this a bad thing in the present climate.

Where a landlord chooses to exercise his right to serve a Section 17 notice and the former tenant or guarantor accepts the position, the procedure can be extremely effective.

However, any proceedings issued will relate only to fixed amounts that have fallen due and for which Section 17 notices have been served.

Thus, even where it is known that future rent is unlikely to be paid, it cannot be claimed within the proceedings until it has actually fallen due and the notices have been served. Once the Section 17 notices have been served, a landlord has six years within which to issue proceedings, and therefore could issue for the initial amount and delay any decision as to further proceedings for later amounts until the outcome of the initial proceedings is known.