Tse v Tulsesense: High Court overturns refusal to set aside forfeiture order made while leaseholder was stranded abroad

A long leaseholder who lost his home over a few hundred pounds of ground rent while stranded in Hong Kong during the pandemic has succeeded in overturning a decision refusing to set aside the possession order made in his absence.

In Chun Hing Tse v Tulsesense Limited [2026] EWHC 1687 (Ch), handed down on 10 July 2026, Mr Justice Thompsell allowed an appeal against the order of HHJ Murch, sitting in the County Court at Luton, which had dismissed Mr Tse's applications to set aside a 2019 possession order under CPR 39.3 and CPR 3.1(2)(p) and to appeal it out of time under CPR 52.15.

A forfeiture the tenant knew nothing about

The lease of the property in Hertfordshire was forfeited by an order of District Judge Beamish on 19 June 2019. The freeholder took possession that August, cleared and renovated the flat and granted a new long lease to a third party. Mr Tse, who had acquired his lease at a premium and had continued paying service charges by cheque throughout 2020 to 2022, learned that something had happened only in October 2022, when a cheque was returned. He was unable to return to England until October 2023 and did not obtain a copy of the order until March 2024.

HHJ Murch treated time as running from October 2022, found no good reason for non-attendance because Mr Tse had made no arrangements for his post, and dismissed the suggested defences as speculative.

Delay not of the appellant's making

Thompsell J accepted that CPR 39.3(5)(a) does not require an applicant to hold a copy of the order before the duty to act promptly bites, and declined to disturb the finding that Mr Tse must at least have suspected in October 2022 that a court order lay behind the forfeiture.

The difficulty lay elsewhere. By the time Mr Tse knew anything at all, the possession order had stood for almost two and a half years, relief from forfeiture had expired, possession had been taken and a new lease granted. The consequences of delay had crystallised while he was wholly unaware. The freeholder, meanwhile, had renovated the property knowing the tenant plainly had not lived there for years, had destroyed his documents and had made no enquiry as to his whereabouts. None of that featured in the judgement below, rendering the delay analysis unsafe under both CPR 3.1(2)(p) and, insofar as it applied, Denton.

On non-attendance, the reasoning was blunt: the appellant did not attend because he did not know of the hearing, and that is a good reason. It was not legitimate to go behind it and resolve the question by counterfactual. Had the judge done so, he would have needed to weigh CPR 6.9(3) and City & Country Properties Ltd v Kamali [2007] 1 WLR 1219, which require reasonable steps to ascertain a current address where there is reason to doubt the last known one. Counsel's submission that unanswered post is the common experience of freehold investment companies attracted no evidential support and was rejected.

The £4 that may have decided the case

The most striking limb concerned prospects of success. The freeholder's own solicitors had confirmed acceptance of £4 of ground rent on 28 December 2018. Acceptance of rent operates as an irrevocable election not to forfeit for prior non-payment, assessed objectively (Expert Clothing v Hillgate House [1986] Ch 340). Since the arrears fell below the £350 prescribed sum under section 167 of the Commonhold and Leasehold Reform Act 2002, forfeiture could only rest on rent outstanding for more than three years. Waiver in December 2018 would have removed that foundation.

HHJ Murch had said there was no evidence of ground rent payments. There was: the freeholder's letter, uncontradicted, in circumstances where the freeholder held the only surviving records.

The Murch Order cannot stand, though the Beamish Order is untouched. A consequentials hearing will determine what Mr Tse now seeks, restoration of the lease having been overtaken by the third party's interest, with a financial remedy raised in argument below.