Commentary on Sections: Part 3
Section 85: Contracts for similar rights to be void
401.This section ensures that any contractual provision which gives a landlord a power to recover rent (or other similar types of payment) by taking control of, or selling, goods or which modifies a landlord’s right to commercial rent arrears recovery (CRAR), will be void, i.e., have no legal effect. A contractual provision that seeks to do any of these things will accordingly be unenforceable. But contracts will be valid and enforceable to the extent that they prevent or restrict the use of CRAR. For example, a contract may provide that:
the landlord may not use CRAR to recover arrears of rent under the lease, whether during a particular period or at all; or
he may use CRAR, but if he does so he may not take control of certain goods (which he would otherwise be entitled to take control of under paragraphs 3(1) and 9 of Schedule 12).
402.This section is accordingly intended to prevent a landlord from making contracts to enlarge his power to take control of goods by CRAR or side-step the abolition of rent distress. For example, it will prevent a landlord from including any of the following provisions in a contract:
a provision that gives a power to distrain for rent arrears, e.g., in relation to a lease of residential premises;
a provision that extends the right to use CRAR, e.g. in relation to payments that are not ‘rent’ for the purposes of CRAR;
a provision that modifies the procedures applying to CRAR, e.g. by dispensing with the need to give an enforcement notice.
