Termination of Tenancies for Tenant Default - Law Commission

1.25 There was therefore strong support for reform and for the type of scheme
provisionally proposed in the CP. We should, however, mention and comment on
one concern that emerged from some quarters during the course of consultation:
that the governing rationale for the statutory scheme provisionally proposed in the
CP appeared to be the protection of tenants. This was not and is not the case.
1.26 We believe that tenants will benefit from the greater transparency of our
recommended scheme and we are of the view that the current system
sometimes, inequitably, operates to the advantage of landlords. We do seek to
redress such injustice where it exists. But our principal objective has been to
provide a workable machinery for the termination of tenancies which simplifies
and modernises the current archaic law. Its greater transparency will be of benefit
to landlords as well as tenants. Reforms such as the abolition of the doctrine of
waiver and the extension of the remedy of termination to cases where the breach
of covenant has been remedied exemplify the importance to this project of
achieving a proper balance between the parties’ competing interests.
1.27 In our view, the underlying problem is that the current law is excessively technical
and unnecessarily complicated. As a consequence, it is difficult for those who are
unfamiliar with the system to understand what is involved in the forfeiture of a
tenancy and to appreciate the consequences of the parties’ actions. There should
be greater transparency so that the parties are at all times aware of their
respective positions and so that disputes are dealt with on their merits.
1.28 The Civil Procedure Rules initiated important changes to court practice and
procedure which the recommended statutory scheme in this Report builds upon.
Central to the scheme is the emphasis on early exchange of information between
the parties, and the encouragement of dispute resolution outside the court
process. Where the court is engaged, it should act in accordance with the
overriding objective to deal with cases justly. 19
1.29 The Council of HM Circuit Judges complained in their consultation response that
the current law “does not work in a way which is always seen to be efficient,
proportionate and just”. This is a concern that our recommendations in this
Report seek to address.
1.30 Under the statutory scheme, no court proceedings to terminate a tenancy may be
commenced unless the landlord has informed the tenant in writing, prior to
initiating proceedings, of the nature of the default of which complaint is being
made, and the action, if any, the landlord requires the tenant to take. It will no
longer be possible for landlords to circumvent proper written notice to the tenant
by basing their claim solely on non-payment of rent. Where a landlord seeks to
use the summary termination procedure (and is permitted to do so), prior written
notice will still be required. It will then be open to the tenant to apply to court to
stop the summary termination process unless the landlord can satisfy the court
that he or she should be permitted to proceed.
1.31 The court process is central to the scheme. Save in the relatively rare
circumstances where a landlord is able to use the summary termination
19 Civil Procedure Rules, r 1.1.
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