Termination of Tenancies for Tenant Default - Law Commission

dispensation power will only be exercised where it is just and equitable to do so. 69
It is very unlikely to be exercised where a landlord has served a summary
termination notice knowing that it was likely to be successfully challenged by the
tenant (or a qualifying interest holder).
7.100 Where the court refuses an application for a discharge order the tenancy will
terminate automatically on the date specified in the summary termination notice
or on the date that the application is refused (whichever is the later). 70 However,
where the tenant or another person remains in occupation of the premises after
that date, the landlord will require an order for possession in order to enforce the
right to take possession of the premises. We consider that it would often be unfair
for the landlord to have to apply to the court for an order for possession in
circumstances where the court has already rejected an application for a
discharge order. We therefore recommend that, where a court declines to make a
discharge order, it should have power to make an order for possession.
Automatic termination
7.101 If the summary termination notice is not withdrawn by the landlord or challenged
by the tenant (or a qualifying interest holder), the tenancy will terminate
automatically one month after being given.
7.102 Once the tenancy has ended, the landlord will be entitled to recover possession
of the premises. If the premises are abandoned, the landlord will be able simply
to recover possession on that date. If the former tenant (or anyone, for that
matter) remains in occupation, the landlord will need to obtain an order for
possession from the court. We do not want this to be a time-consuming process
for the landlord to have to undertake. We therefore recommend that an expedited
procedure should be available to the landlord. This will be achieved through the
CPR governing actions for the recovery of land 71 rather than by means of express
provision in the draft Bill.
Post-termination order
7.103 Under current law, a tenant or derivative interest holder may apply for relief after
the tenancy has been forfeited (whether by court action or physical re-entry). 72
Under the CP’s provisional proposals there was no such right. We believe that
this would potentially have placed tenants and derivative interest holders in a
worse position than that they are in under the current law. We now recommend
that, where a tenancy has terminated under the summary termination procedure,
the former tenant or former qualifying interest holder should still be entitled to
apply to the court in appropriate circumstances.
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For example, where the landlord reasonably believed that the demised premises had been
abandoned by the tenant.
70 Where there is an application for a discharge order, the tenancy will continue until
determination of that challenge (or the expiry of any period during which an appeal in
relation to that determination may be brought, and during the disposal of any such appeal).
71 Civil Procedure Rules, Parts 55 and 56.
72 But there is currently no right to relief after a court order for possession has been
executed, except where the ground for forfeiture was non-payment of rent (in which case,
all relief is barred six months after repossession): County Courts Act 1984, s 138(9A).
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