Termination of Tenancies for Tenant Default - Law Commission

Benefits
court may not do, however, is order the retrospective restoration of the
terminated tenancy. 49
7.70 We believe that the summary termination procedure has the following benefits
when contrasted with the CP’s provisional proposals for unilateral recovery of
possession:
(1) The termination of the tenancy is contemporaneous with the moment that
the landlord becomes entitled to legal possession of the premises. This
means that the tenant remains in possession, and is properly liable under
all the covenants, until the tenancy itself ends. 50
(2) This has particular advantages for those with occupational interests, such
as sub-tenancies, which are subsidiary to those of the tenant. They will
also be entitled to possession, pursuant to their arrangements with the
tenant, until the tenancy itself terminates.
(3) The summary termination notice will make clear to all interested parties
the date on which termination of the tenancy will take effect.
(4) The landlord is required from the outset to elect between following the
summary termination procedure and making a termination claim. The
tenant should therefore be in no doubt as to the nature of the response
required in order to prevent the termination of the tenancy on the expiry
of the notice (that is, to apply to the court for the notice to be discharged).
(5) The period between service of a summary termination notice and its
expiry is sufficiently long for the tenant (and any qualifying interest
holders) to take advice and to begin a dialogue with the landlord putting
forward any reason which they believe renders the use of the summary
procedure inappropriate. Where negotiation fails there will remain
sufficient time for the tenant or qualifying interest holder to apply to court
for a discharge order.
(6) Where the application for a discharge order fails, the court will have the
power to make an order for possession. This will enable a landlord, in
appropriate circumstances, to recover possession of the premises quickly
without having to return to court.
(7) In addition, the court will continue to have a discretionary jurisdiction for a
six-month period after the termination of the tenancy to consider an
application by the former tenant or qualifying interest holder for any other
order the court thinks just and equitable in the circumstances.
49 As to permit this would result in the replication of the problems we have identified around
the “twilight period” under the current law.
50
If an occupier remains in the premises, the landlord will need to obtain a warrant for
possession to regain de facto possession.
147