Termination of Tenancies for Tenant Default - Law Commission

in the sub-tenant being removed from occupation of the premises subject
to the sub-tenancy. Again, the basis of this action would be dubious.
(3) The continuing liability of the tenant upon the covenants following
unilateral recovery of possession is difficult to justify, even if it is for a
relatively short period (under the CP’s proposals, the tenancy would
terminate one month after possession was recovered). Further practical
problems would arise, once possession had been taken by the landlord,
in relation to covenants requiring the tenant to remain in occupation and
to continue trading (“keep-open” covenants), covenants to insure where
the relevant policy requires the tenant to occupy the insured premises,
and tenants’ covenants to repair.
(4) The provisional proposals allowed tenants (and qualifying interest
holders) to apply to the court for “relief” within one month of the date the
landlord recovered possession. Two problems have been recognised.
First, this time limit is very tight, and considerably shorter than the time
limit within which tenants are currently expected to apply following
forfeiture of the tenancy. Secondly, the short time limit would emphasise
the importance of identifying the date at which time begins to run. That
would not always be straightforward, and it could cause real difficulties
for tenants or sub-tenants who were not immediately aware of the
landlord’s actions.
(5) Finally, we do not consider that it is necessary specifically to provide a
form of “self-help” to enable landlords to make abandoned premises
secure against the elements, vandalism and similar risks. Under the
current law, a landlord may secure premises in such circumstances, and
if done with the intention of protecting the landlord’s reversion this will not
comprise a forfeiture of the tenancy. 42 We are satisfied that this common
law right, which our recommendations do not affect, gives the landlord
sufficient protection in this respect.
A SUMMARY TERMINATION PROCEDURE
7.61 The issues outlined above have caused us to look again at the CP’s provisional
proposals and the reasoning behind them. We have concluded that the CP’s
provisional proposals did not go far enough to reform the current law. Entitling the
landlord physically to recover possession of the premises closely resembles the
exercise of forfeiture by physical re-entry under the current law and inevitably
replicates many of the unsatisfactory aspects of that practice. The tenant and any
sub-tenant in possession are at risk of serious disruption to their businesses in
circumstances where the landlord’s action may ultimately prove to be unfounded
or be held to be a disproportionate response to the tenant default complained of.
7.62 In the past the stated rationales for making provision for some form of statutory
right of physical re-entry included providing the landlord with sufficient protection
of their rent revenues and enabling the landlord, in appropriate cases, to avoid
the delay and expense which litigation inevitably entails. We still consider these
42 Relvok Properties v Dixon (1972) 25 P & CR 1.
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