Termination of Tenancies for Tenant Default - Law Commission

powerful reasons for some alternative to the court process to be made available
to landlords of non-residential premises. 43 There is, however, no compelling
reason why the statutory scheme should make provision for anything that
replicates physical re-entry under current law. It is possible, we believe, to
provide a means of termination that does not require the landlord to obtain a
termination order but does provide adequate safeguards for the interests of
tenants and qualifying interest holders: a summary termination procedure.
7.63 The summary termination procedure that we now recommend would not replicate
physical re-entry. It would, however, confer on landlords of commercial premises
a means of obtaining an expeditious termination of a tenancy without the
expense and delay of going to court to obtain a termination order. It would
properly be available only where the tenant’s failure to comply with the
obligations contained in the tenancy agreement is such that there is no
reasonable prospect of the court allowing the tenancy to continue.
7.64 At the same time, it is necessary to ensure (both on grounds of fairness and in
order to ensure compliance with the European Convention of Human Rights) that
the tenant, and those holding qualifying interests in the tenancy, obtain adequate
notice of the landlord’s intentions and have the opportunity to make application to
the court to prevent the landlord from terminating the tenancy using this method.
7.65 The summary termination procedure is distinct from the court-based termination
procedure. Landlords would be required to elect which procedure they wish to
follow in response to a tenant default. The summary procedure is commenced by
service of a notice and the tenancy terminates automatically on expiry of the
notice. The procedure incorporates significant safeguards to protect the interests
of the tenant and any qualifying interest holders.
7.66 The following paragraphs set out the summary termination procedure in some
detail and explain how it will, in our view, maintain a principled balance between
the interests of the landlord, the tenant and those holding qualifying interests in
the tenancy. It may assist if we first set out an overview of the procedure and
then describe what we consider to be the benefits it would confer.
Overview
7.67 The summary termination procedure is a self-contained procedure which is
wholly independent of the procedure to be followed by a landlord seeking a
termination order from the court. It will be necessary for the landlord to decide
which procedure to invoke in the circumstances of the particular case. It will not
be possible for a landlord to run both the court-based method of termination and
the summary termination procedure simultaneously. There may be circumstances
where the landlord may first attempt to use the summary termination procedure,
and, if this is unsuccessful, then initiate an application for a termination order.
7.68 The summary termination procedure is a form of “termination action” under the
statutory scheme. In common with the other form of termination action, a
43 Residential premises have always been treated differently: see para 7.50.
145