Termination of Tenancies for Tenant Default - Law Commission

Repairing covenants
7.79 The repairs regime referred to in the CP, was to have replicated the effect of the
Leasehold Property (Repairs) Act 1938. For the reasons discussed above, 59 we
now recommend that, where the 1938 Act would apply under the current law, the
court should not make any order on an application by the landlord unless one of
five conditions is satisfied. These conditions are modelled on those in section
1(5) of the 1938 Act which govern the court’s discretion to grant leave to proceed
with forfeiture.
7.80 If we were to permit a landlord to use the summary termination procedure where
the relevant tenant default is breach of a repairing covenant, we would be
significantly diluting the protection that the 1938 Act currently affords tenants who
come within its scope. This is because we would be permitting the termination of
a tenancy without any consideration by the court of the substantive merits of the
landlord’s case. We accordingly recommend that in circumstances where the
1938 Act would apply the landlord may not use the summary termination
procedure.
Where any person is lawfully residing
7.81 We recommend that a landlord may not use the summary termination procedure
where any person is lawfully residing in all or part of the premises. 60 This will
essentially limit the utility of the summary termination procedure to circumstances
where premises are used solely for commercial premises or where residential
premises have been abandoned. Even in these cases, the current law provides
criminal sanctions to protect any persons on the premises from an attempt to
evict them by force. 61
7.82 Although the summary termination procedure does not involve any element of
physical re-entry, we believe that it is right that where persons are lawfully
residing on premises the landlord should be required to make a termination claim
to the court and to obtain a termination order. To provide otherwise would, we
believe, place lawful residents in a worse position than that under the current law.
Tenancies with more than 25 years unexpired
7.83 For the reasons set out in the CP, 62 we consider that it is important to prevent
summary termination of tenancies with a high capital value. The easiest rule to
apply (without the need for valuation evidence) is one based on the unexpired
term of the tenancy. It seems to us, having considered the consultation
responses, that 25 years is the best threshold.
59 See para 5.128 and following.
60 CP, para 12.8(6). This wording is based on the Protection from Eviction Act 1977, s 2 but
is not limited (as that section is) to premises that are let as a dwelling.
61 Criminal Law Act 1977, s 6.
62 CP, para 8.19 and following.
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