Termination of Tenancies for Tenant Default - Law Commission

property. The simplest means of ensuring that the interest holders are made
aware is to provide that the landlord should give the tenant default notice (or
summary termination notice) not only to the tenant but also to any holders of
qualifying interests.
6.55 We realise that there would be dangers in imposing an absolute obligation on the
landlord to give notice to all holders of qualifying interests. Unless the landlord
can discover without undue difficulty the identity of all those who hold such
interests, the landlord would be placed in an invidious position. There would
inevitably be circumstances where the landlord has done all that can reasonably
be expected in order to identify and trace holders of qualifying interests, but has
still failed to find them all. An absolute requirement to give notice could lead to
frequent applications by interest holders who had not received notice to have
orders set aside.
The CP’s provisional proposals
6.56 The CP provisionally proposed a system which required both the landlord and
members of the derivative class (now qualifying interest holders) to take certain
steps to ensure that their interests were not overlooked. This provisional proposal
sought to take full advantage of recent enhancements to the statutory scheme for
the registration of title to land. 51 As a result of those reforms, the CP considered it
appropriate to put the onus on holders of qualifying interests to register their
interests in order to protect them. Interest holders were also encouraged to take
steps to notify the landlord of their existence.
6.57 The CP therefore provisionally proposed that the landlord should be required to
serve a pre-action notice (now tenant default notice) on all the members of the
derivative class where:
(1) the person’s interest would have been revealed by an official search of
the register of title or the Land Charges Registry (as the case may be); 52
(2) the landlord knows that the person is a member of the derivative class; 53
or
(3) the person had previously notified the landlord that he or she was a
member of the derivative class. 54
6.58 A member of the derivative class would therefore be deemed to have given the
landlord effective notice of the derivative interest where:
(1) the interest had been registered against the title out of which it derives; 55
(2) the interest had been registered with its own separate title or in the Land
Charges Register; 56 or
51 See CP, para 7.26.
52 CP, para 12.7(5)(a).
53 CP, para 12.7(5)(b).
54 CP, para 12.7(5)(c).
55 CP, para 12.7(6)(a).
116