Termination of Tenancies for Tenant Default - Law Commission

7.51 The final restriction was:
It may not be exercised in relation to any tenancy with an unexpired
term of more than 25 years. 41
7.52 This proposal was intended to exclude the exercise of self-help where the
tenancy is a valuable capital asset. The landlord should, it was argued, be
required to seek a termination order from the court in such circumstances. There
were few responses to this specific proposal, and they were finely balanced in
favour. Those who opposed the proposal appeared to accept the policy
underlying it, but preferred to draw the line elsewhere.
Notice requirements
7.53 The majority of respondents who commented were in favour of the proposed
requirement that the landlord serve a pre-action notice before unilaterally
recovering possession. The Council of Mortgage Lenders pointed out its utility in
allowing mortgagees to determine their response in advance of any action and
suggested a minimum notice period of 21 days.
7.54 The Property Bar Association conceded the necessity for prior notice, but noted
that provision of notice may “tip off” the recalcitrant tenant and cause them to
maintain a continuous presence at the property. Adopting a similar argument,
Lovells contended that the proposals would sound the death knell of what is in
their view “a highly effective, quick and relatively cheap remedy for the landlord”,
arguing that they would “enable unscrupulous tenants to frustrate the recovery of
possession by remaining in the premises and will … lead to a substantial
increase in the number of cases before the courts”.
The effect of recovery of possession
7.55 Responses to the provisional proposal that the tenancy should remain extant for
a month after the landlord had unilaterally recovered possession were, not
surprisingly, mixed. Some consultees felt that one month was too long (in
particular where the premises were obviously abandoned and the landlord was
seeking to re-let), some felt it was too short and some felt that it was unjust to
enforce covenants against the tenant where possession was being denied.
7.56 The concerns of a number of consultees are articulated in the response of the
Property Bar Association which identified “fundamental difficulties of principle”
with the CP’s proposed system of unilateral recovery of possession. They argued
that:
It does not fit at all well with the scheme for termination by the
Court. ... A termination order does not necessarily carry with it the
right to possession. Termination comes first, then possession. The
Part VIII scheme by contrast adopts precisely the opposite principle,
possession comes first and then termination follows. For all its
defects and distinctions from forfeiture by action, forfeiture by
peaceable re-entry at least works in principle in the same way as
41 CP, para 12.8(7).
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