Transfer of Property Act (TPA)
Mere Right of Re-entry under Section 6(b): Condition Subsequent, Forfeiture and Why the Right Cannot Be Sold
When a grantor parts with property on a condition, he usually keeps something back: the right to take the property again if the condition is broken. That right is the right of re-entry. Section 6(b) says it cannot be transferred — to anyone except the owner of the property affected by it. The prohibition is narrow and the word that carries it is mere. Attached to the reversion, the right travels with it as freely as any other incident; standing alone, divorced from any interest in the land, it cannot move at all.
Figure 1: How the right arises, what the clause forbids, and what remains perfectly lawful
1. The Clause
Section 6(b), TPA 'A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby.' |
2. What a Right of Re-entry Is
A right of re-entry is the right reserved by a grantor to resume possession of property he has granted to another, upon the breach of a condition. It presupposes three things.
- A grant. The property has been given to another for a term or an estate — most commonly a lease, but the clause is not confined to leases.
- A condition subsequent. A condition which, if broken, defeats or determines an interest that has already vested. It differs from a condition precedent, which must be satisfied before the interest arises at all. Under section 31 of the Act, an interest may be made to cease on the happening of a specified event.
- A reservation of the right to re-enter. The grantor expressly keeps the power to re-take the property on breach — in a lease, the forfeiture clause recognised by section 111(g), which determines the lease where the lessee breaks an express condition providing that on breach the lessor may re-enter.
3. What Makes It 'Mere'
The clause bars the transfer of a mere right of re-entry — that is, the right considered by itself, unaccompanied by any interest in the land. The distinction is the whole of the topic.
The situation | Transferable? |
|---|---|
A, having leased to B, assigns to C the bare right to re-enter on breach, keeping the reversion himself | No — this is precisely what clause (b) forbids |
A sells the reversion to C; the right of re-entry passes with it | Yes — the right is an incident of the reversion and passes under section 8, read with section 109 |
A releases the right of re-entry to B, the lessee | Yes — the exception in the clause itself; the right is extinguished by merger in B's interest |
A, after the breach has occurred and he has re-entered, transfers the property | Yes — he is now transferring the property, not a right of re-entry |
A mortgagee transfers the mortgage together with the powers annexed to it | Yes — the powers travel with the security |
Section 109 and the incident that travels Where the lessor transfers the property leased, section 109 passes to the transferee all the rights of the lessor as to the property — and the right of re-entry on forfeiture is one of them. Read with section 8, which passes the legal incidents of the property, this explains why a purchaser of the reversion may forfeit the lease for a breach although he was a stranger to the original lease. |
4. Why the Law Forbids the Bare Transfer
- It is not property in any useful sense. The right cannot be enjoyed, let, mortgaged or made to yield income. It produces nothing until a breach occurs, and may produce nothing at all.
- It is personal to the grantor. It exists to protect the interest he retained. Separated from that interest it protects nothing, and has value only as a speculation.
- It would invite trafficking in forfeitures. A market in bare rights of re-entry would create a class of buyers whose only return lies in another man's default — the same mischief that clause (e) addresses by forbidding the assignment of a bare right to sue.
- The exception proves the reason. The one permitted transferee is the owner of the property affected. A transfer to him does not create a speculator; it extinguishes the right and perfects his title, which the law is content to encourage.
5. Forfeiture, Waiver and Relief
The right of re-entry does not operate automatically, and the Act surrounds its exercise with checks.
Provision | Effect |
|---|---|
Section 111(g) | A lease determines by forfeiture where the lessee breaks an express condition providing for re-entry, denies the lessor's title, or is adjudicated insolvent where the lease so provides — and the lessor gives notice in writing of his intention to determine the lease |
Section 112 | Forfeiture is waived by acceptance of rent which has become due since the forfeiture, or by distress, or by any other act showing an intention to treat the lease as subsisting — provided the lessor knew of the forfeiture |
Section 113 | A notice given under section 111(g) may itself be waived by any act showing an intention to treat the lease as subsisting |
Section 114 | Relief against forfeiture for non-payment of rent: if at the hearing the lessee pays or tenders the arrears with interest and costs, the court may pass a decree restoring him to possession |
Section 114A | Before suing for ejectment on breach of an express condition other than non-payment of rent, the lessor must serve notice specifying the breach and requiring it to be remedied, where it is capable of remedy |
The practical effect is that the right of re-entry is a right to begin a process, not to take the law into one's own hands. That is a further reason why it is a poor subject of sale.
6. Distinguishing Neighbouring Ideas
Concept | How it differs from a right of re-entry |
|---|---|
A condition precedent | It must be fulfilled before the interest arises; a right of re-entry presupposes an interest that has already vested and is being defeated |
A determinable limitation | The interest comes to a natural end when the limiting event occurs, without any act by the grantor; a right of re-entry must be exercised |
A right of pre-emption | A right to be offered the property first on a proposed sale — a restriction on alienation, not a power to resume possession |
A mortgagee's right to possession | It arises out of the security and is exercisable as an incident of it; the right travels with the mortgage |
A licensor's right to revoke a licence | The licence confers no interest in the property, and its revocation is governed by the Easements Act, not by the law of forfeiture |
Retention aid Read the clause backwards. It does not forbid transferring the right of re-entry; it forbids transferring a mere right of re-entry to anyone except the owner of the property affected. Take away the word 'mere' and you have a right that passes with the reversion; take away the exception and you lose the one transfer that extinguishes the problem instead of creating it. |
7. Related Topics and Provisions
- What May Be Transferred, Section 6 — the general rule and the other exceptions
- Spes Successionis, Section 6(a) — the neighbouring clause, and the same policy against speculation
- Section 31, TPA — conditions on which an interest is to cease, and conditions subsequent generally
- Section 111(g), TPA — determination of a lease by forfeiture, and the notice required
- Sections 112, 113, 114 and 114A, TPA — waiver of forfeiture and relief against it
- Sections 8 and 109, TPA — how the right of re-entry passes with the reversion