Termination of Tenancies for Tenant Default - Law Commission

(7) Any other matter
5.127 It would be impossible to set out a comprehensive list of factors that might be
relevant to any given circumstances. It is therefore necessary to empower the
court to take into account any factor that it considers relevant. 91
THE LEASEHOLD PROPERTY (REPAIRS) ACT 1938
5.128 The Leasehold Property (Repairs) Act 1938 provides certain tenants with
additional protection from forfeiture where the breach of covenant complained of
is a covenant to put or keep premises in repair. The operation of the 1938 Act
and the mischief it was enacted to deal with have been explained in Part 4. 92
5.129 The CP provisionally proposed that the statutory termination scheme would
incorporate a “repairs regime” modelled on the 1938 Act. 93 This regime would
apply to tenancies with three or more years unexpired and granted for a term of
more than seven years. A tenant of such a tenancy served with a tenant default
notice complaining of a tenant default that is a breach of a repairing covenant
would be able to serve a counter-notice. The counter-notice would require the
landlord to obtain the leave of the court before making a termination claim. The
grounds for leave would replicate those in the 1938 Act.
5.130 For the reasons discussed in Part 4, we no longer intend to proceed with the
provisional proposal that the repairs regime should be initiated by a tenant
serving a counter-notice to the landlord’s tenant default notice. This is
unnecessary because, unlike the current law, a tenancy may only be terminated
by an order of the court (unless the summary termination procedure is used,
which will not be possible under the repairs regime that we now recommend). 94
5.131 This modification to the CP’s provisional proposal is essentially procedural. We
do not, however, intend to modify the substantive proposal that the protection
afforded to tenants who come within the scope of the 1938 Act should be
replicated as far as possible under the statutory termination scheme.
5.132 We recommend that, where a tenancy (other than an agricultural tenancy) 95
was granted for at least seven years 96 of which at least three years are
unexpired, 97 and there has been tenant default that is a breach of a
covenant to put or keep the whole or part of the demised premises in
repair, 98 the court may not make any order unless: 99
91 A similar catch-all provision is found in the grounds on which the court may grant a
landlord leave to proceed with forfeiture under the Leasehold Property (Repairs) Act 1938.
92 Para 4.83 and following.
93 CP, para 12.5(8).
94 See Part 7.
95 Draft Bill, sch 4, para 1(2).
96 Draft Bill, sch 4, para 4(1)(c).
97 Draft Bill, sch 4, para 1(1)(d).
98 Draft Bill, sch 4, para 1(1)(b).
99 Draft Bill, sch 4, para 2(1).
102