Termination of Tenancies for Tenant Default - Law Commission

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2 178 Landlord and Tenant (Termination of Tenancies) Bill (2) A covenant of a post-commencement tenancy is excepted if the tenancy makes express provision to that effect. (3) A covenant of a pre-commencement tenancy is excepted if there is no provision of the tenancy or implied right which would, but for section 1, entitle the landlord to forfeit the tenancy on the ground of a breach of the covenant. (4) Schedule 2 makes further provision about tenant default. 3 Termination action (1) Taking termination action in respect of a tenant default means making a termination claim, or using the summary termination procedure, on the ground of the default. (2) Making a termination claim on the ground of a tenant default means making a claim to the court for a termination order on the ground of the default. (3) Using the summary termination procedure on the ground of a tenant default means giving and delivering summary termination notices on the ground of the default in order to secure the termination of the tenancy under section 22 on the ground of that default. (4) A termination claim may include a claim for possession of the demised premises on the termination of the tenancy. (5) Termination action in respect of a tenant default is of no effect unless taken— (a) by the appropriate landlord, and (b) in accordance with this Act (and any other enactment which makes provision about taking termination action in respect of a tenant default). (6) The appropriate landlord, in relation to a tenant default, is the person who— (a) is the landlord under the tenancy, and (b) has the right to enforce the covenant to which the default relates. (7) In sections 4 to 26 and Schedule 4, a reference to the landlord is to the appropriate landlord. 4 Tenant default notice Termination claim (1) The landlord may not make a termination claim on the ground of a tenant default unless during the default period he— (a) gives the tenant a tenant default notice specifying the default, (b) gives every person who has an interest in the tenancy which is a qualifying interest of which the landlord has knowledge a tenant default notice specifying the default, and (c) delivers to the demised premises a tenant default notice specifying the default and addressed to “the occupier”. (2) A tenant default notice is a notice which— (a) is in writing and in the prescribed form, (b) complies with section 6, and (c) contains such further information as may be prescribed. 5 10 15 20 25 30 35 40
Landlord and Tenant (Termination of Tenancies) Bill 3 (3) The default period is the period of six months beginning with— (a) the first day on which the landlord knew that the facts constituting the default had occurred, or (b) any day on which he knew that facts constituting the default were continuing to occur. (4) But where the default is a breach in relation to which section 168 of the Commonhold and Leasehold Reform Act 2002 (c. 15) (breach under long lease of dwelling other than failure to pay rent, etc.) applies, subsection (3) of this section has effect subject to subsection (3) of that section. (5) If the landlord and tenant agree to extend the default period, it continues until the end of the period specified in the agreement. (6) The agreement must— (a) be in, or be evidenced by, writing, and (b) be made before the end of the period determined under subsection (3) or, where an agreement under subsection (5) has effect, before the end of the period specified in the agreement. (7) Schedule 3 makes further provision about giving and delivering tenant default notices. (8) This section is subject to section 8. 5 Explanatory statement (1) In the case of a post-commencement tenancy, the landlord may not give or deliver a tenant default notice on the ground of a tenant default unless— (a) the tenant has been given an explanatory statement relating to the tenancy, or (b) the court thinks it just and equitable to dispense with the need for an explanatory statement. (2) An explanatory statement is a statement explaining what can happen as a result of this Act if there is a tenant default. (3) An explanatory statement must— (a) be in writing and in the prescribed form, (b) contain such information as may be prescribed, and (c) be given in accordance with prescribed requirements. 6 Contents of notice (1) A tenant default notice must give particulars of the default (or defaults). (2) It must specify in respect of the default (or each default)— (a) any action the landlord requires the tenant to take (“remedial action”), and (b) if remedial action is specified, the day on or before which the landlord requires the tenant to have completed the action (the “deadline”). (3) It must— (a) specify the period during which the landlord may make a termination claim on the ground of the default (or defaults), and (b) set out in the prescribed form of words the effect of section 7(3). 179 5 10 15 20 25 30 35 40
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The Law Commission (LAW COM No 303)
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THE LAW COMMISSION TERMINATION OF T
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Consultation 40 Reform recommendati
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Consultation 68 Reform recommendati
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(7) Any other matter 102 THE LEASEH
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Restrictions on using the summary t
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where appropriate using the various
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etains an equitable jurisdiction to
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of the law”. A number of leading
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procedure, the tenancy will not ter
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Part 6 examines the position of tho
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2.7 When a tenancy is terminated un
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unless valid notices have been give
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Transfer order 2.30 Only a qualifyi
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2.41 Where a landlord serves a summ
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PART 3 TENANT DEFAULT INTRODUCTION
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scheme by characterising the obliga
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to include such clauses and to allo
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perform their obligations under the
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SPECIAL CASES OF TENANT DEFAULT Den
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Assignment 3.51 Most tenancies cont
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the incoming tenant of the assigned
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often stipulate that a right to for
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insolvency process having the same
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3.93 In addition, section 81 of the
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1996 and Chapter 5 of the Commonhol
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covenant is non-payment of rent, a
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Reform recommendations 3.132 We rec
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The CP’s provisional proposals 4.
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do so by delaying until the default
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it is unlikely that a tenant would
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(4) give the date by which action m
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Specify the time for remedial actio
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(3) must specify in respect of the
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agreement (subject to a maximum ext
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underlying principle that qualifyin
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all tenancies granted for seven or
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4.92 As we intend to retain the sam
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PART 5 MAKING A TERMINATION CLAIM (
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e set off against the cost of carry
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future liabilities under the terms
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(6) where a tenancy comes to an end
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5.43 During the period of the stay,
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described. During the consultation
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termination of a tenancy under the
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5.69 We recommend that the proceeds
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5.75 The First Report therefore rec
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making any order under the scheme t
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5.93 The CP provisionally proposed
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of the parties. 78 Proportionality
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past conduct of the parties. This m
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(7) Any other matter 5.127 It would
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PART 6 QUALIFYING INTERESTS INTRODU
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1925 extends to lessees, under-less
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according to the lease without any
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interchangeably by the courts, by s
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entitled to use the scheme to prote
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(2) if not in occupation, a right w
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property. The simplest means of ens
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(1) What should the landlord be exp
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claim with the court for service on
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have to apply for relief, which, if
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qualified covenant not to assign th
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that it is both appropriate and pro
Page 130 and 131: order unless the person who holds t
Page 132 and 133: CP suggested, close down any potent
Page 134 and 135: PART 7 SUMMARY TERMINATION PROCEDUR
Page 136 and 137: action rather than by physical re-e
Page 138 and 139: Paper was published. 22 It proposed
Page 140 and 141: 7.28 It was hoped that this recomme
Page 142 and 143: equirement for service of a notice
Page 144 and 145: 7.51 The final restriction was: It
Page 146 and 147: in the sub-tenant being removed fro
Page 148 and 149: termination claim, the summary term
Page 150 and 151: 7.71 The summary termination proced
Page 152 and 153: Repairing covenants 7.79 The repair
Page 154 and 155: 7.88 We do not wish to discourage t
Page 156 and 157: dispensation power will only be exe
Page 158 and 159: to costs under the summary terminat
Page 160 and 161: 7.112 We recommend that: specifying
Page 162 and 163: PART 8 LIST OF RECOMMENDATIONS PART
Page 164 and 165: 8.13 We recommend that the Insolven
Page 166 and 167: (a) the day after the deadline spec
Page 168 and 169: (6) if the court dismisses an appli
Page 170 and 171: 8.39 We recommend that, where a ten
Page 172 and 173: 8.49 We recommend that: (1) where t
Page 174 and 175: (4) the default is a breach of cove
Page 176 and 177: APPENDIX A DRAFT LANDLORD AND TENAN
Page 178 and 179: ii Interpretation, etc. 28 Meaning
Page 182 and 183: 4 180 Landlord and Tenant (Terminat
Page 184 and 185: 6 (8) This section is subject to se
Page 186 and 187: 8 13 Remedial order 184 Landlord an
Page 188 and 189: 10 186 Landlord and Tenant (Termina
Page 194 and 195: 16 30 Meaning of “qualifying inte
Page 198 and 199: 20 Preliminary 196 Landlord and Ten
Page 200 and 201: 22 Proper address 198 Landlord and
Page 204 and 205: 26 Settled Land Act 1925 (c. 18) 4
Page 210 and 211: 32 Protection from Eviction Act 197
Page 212 and 213: 34 Landlord and Tenant Act 1985 (c.
Page 216 and 217: 38 (2) After that subsection, inser
Page 218 and 219: 40 Settled Land Act 1925 (c. 18)—
Page 220 and 221: APPENDIX B EXPLANATORY NOTES TO THE
Page 222 and 223: landlord assigns the reversion, he
Page 224 and 225: 33. For example, if a tenant defaul
Page 226 and 227: 53. Subsection (5), although broadl
Page 228 and 229: If the court is satisfied of this,
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91. Subsection (4) mitigates the ef
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108. Under the current law, forfeit
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126. Subsection (2) applies where t
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145. Subsection (1)(d) includes wit
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unless he or she obtains a court or
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person who is the tenant as a resul
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termination notice (except where th
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Robin Sinclair, Solicitor Slaughter
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