Termination of Tenancies for Tenant Default - Law Commission

past conduct of the parties. This may include past breaches of covenant, whether
or not they constituted tenant default and whether or not they have been
remedied. 87
5.115 It is at this stage of its determination that the court may consider the extent to
which the parties have acted reasonably. Evidence of an unreasonable refusal by
either party to negotiate or to take part in proportionate dispute resolution that
might have avoided court proceedings should be considered at this stage (as well
as at the stage of considering costs). 88
5.116 It is particularly important, in light of the fact that we do not attempt to replicate
the doctrine of waiver in the scheme, that the court takes account of any conduct
that has led the tenant reasonably to believe that the landlord has accepted the
tenant default being complained of. 89 Equally, the court should take account of
any conduct of the tenant that might have misled the landlord into acquiescing in
the tenant default.
(2) Qualifying interests
5.117 Where the applicant for an order is a qualifying interest holder, factor (1) requires
the court to take his or her conduct into account as well as the conduct of the
landlord and of the tenant. But in every case where there are qualifying interests
in the tenancy we believe that the court should take those interests into account,
whether or not the holders of those interests have applied for an order to protect
their interests (discussed in Part 6).
5.118 In considering any particular qualifying interest, we would expect the court to take
account of its nature and terms. By this we mean the type of interest (the range of
qualifying interests are set out in Part 6), its duration or size and the terms on
which the interest was granted. For example, where a sub-tenancy has been
granted for almost the whole term of the tenancy or there is a significant
mortgage over the tenancy, the court should take these factors into account
before making a termination order that will effectively terminate these interests as
well as the tenancy that they are derived from.
5.119 The court’s attention is also drawn to the circumstances of the creation of the
qualifying interest in question. For the reasons we discuss in Part 6, we do not
exclude from the protection of the scheme sub-tenancies or mortgages that were
created without the landlord’s consent (where such consent is required).
However, we would want the lawfulness or otherwise of the sub-tenancy or
mortgage to be taken into account by the court in deciding what order to make.
87 See CP, para 4.26.
88
This is in line with the approach taken under the Civil Procedure Rules to parties who fail to
follow a relevant pre-action protocol.
89 See CP, para 4.32.
100