Termination of Tenancies for Tenant Default - Law Commission

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14 190 Landlord and Tenant (Termination of Tenancies) Bill (b) a dispensation order dispensing with any requirement to give a tenant default notice specifying the default has effect. (3) Subsection (4) also applies where— (a) the landlord purports to make a termination claim on the ground of a tenant default without having given a tenant default notice specifying that default, but (b) subsection (2)(b) does not apply. (4) The landlord may not give a summary termination notice specifying the default concerned unless the claim is dismissed or abandoned. (5) Where the landlord gives a summary termination notice specifying a tenant default, he may not give a tenant default notice specifying that default unless— (a) the summary termination notice is withdrawn in accordance with prescribed requirements, or (b) a discharge order has effect in relation to the default. (6) A reference to giving a notice includes delivering it. 26 Costs (1) The landlord may recover from the tenant, as a debt due to the landlord, all reasonable costs properly incurred in connection with preparing, giving or delivering a tenant default notice or a summary termination notice. (2) But costs may not be recovered under subsection (1) unless the notice specifies— (a) that the landlord intends to recover costs under that subsection, and (b) the amount of costs he intends to recover (so far as they can reasonably be quantified). (3) The landlord may not recover under a provision of the tenancy any costs— (a) which he is entitled to recover under subsection (1), or (b) which are disallowed on an assessment of the costs of proceedings under this Act. 27 The Crown This Act binds the Crown. Interpretation, etc. 28 Meaning of “tenancy”, “breach”, etc. (1) This section and sections 29 to 31 make provision for the interpretation of this Act. (2) “Tenancy” includes— (a) a sub-tenancy (including any sub-tenancy which is itself derived from a sub-tenancy), and (b) a tenancy in equity. (3) “Pre-commencement tenancy” means a tenancy granted— (a) before the date on which section 1 comes into force, or 5 10 15 20 25 30 35 40
Landlord and Tenant (Termination of Tenancies) Bill 15 (b) as a result of a contract made, or option exercised, before that date. (4) “Post-commencement tenancy” means a tenancy granted on or after that date except one granted as a result of a contract made, or option exercised, before that date. (5) A reference to an agricultural tenancy is to— (a) a tenancy of an agricultural holding within the meaning of the Agricultural Holdings Act 1986 (c. 5), or (b) a farm business tenancy within the meaning of the Agricultural Tenancies Act 1995 (c. 8). (6) A reference to a breach by a person of a covenant of a tenancy includes— (a) the occurrence in relation to him of an event on the occurrence of which a right to forfeit the tenancy would, but for section 1, become exercisable; (b) the occurrence of an event, the occurrence of which is attributable to his conduct and on the non-occurrence of which the continuation of the tenancy is purported to depend; (c) the non-occurrence of an event, the non-occurrence of which is attributable to his conduct and on the occurrence of which the continuation of the tenancy is purported to depend. (7) For the purposes of subsection (6), the cases in which the continuation of a tenancy is purported to depend on the occurrence, or non-occurrence, of an event include those where a right to terminate the tenancy in accordance with its provisions (whether express or implied) is purported to become exercisable on the occurrence, or non-occurrence, of that event. (8) No reference in subsection (6) to the occurrence of an event, or to conduct to which the occurrence of an event is attributable, includes the giving or receipt of a notice to terminate the tenancy in accordance with its provisions (whether express or implied). 29 Meaning of “landlord”, “tenant”, etc. (1) “Landlord”, in relation to a tenancy, means the person entitled to the reversion immediately expectant on the term of the tenancy; but this is subject to section 3(7). (2) “Appropriate landlord” has the meaning given in section 3(6). (3) “Tenant”, in relation to a tenancy, means the person entitled to the term of the tenancy (and a reference to a previous tenant is to be read accordingly). (4) In the case of a person who is the landlord or tenant of part only of premises demised by a tenancy— (a) a reference to the demised premises is to the part, and (b) a reference to the tenancy is to the tenancy to the extent that it applies to the part. (5) Where two or more persons constitute the landlord, the tenant or a person who has a qualifying interest in the tenancy— (a) a reference to him is to both or all of the persons concerned, but (b) anything required or authorised to be done by him under or as a result of this Act need not be done by both or all of those persons. 191 5 10 15 20 25 30 35 40 45
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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
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order unless the person who holds t
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CP suggested, close down any potent
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PART 7 SUMMARY TERMINATION PROCEDUR
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action rather than by physical re-e
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Paper was published. 22 It proposed
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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 180 and 181: 2 178 Landlord and Tenant (Terminat
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,
Page 230 and 231: 91. Subsection (4) mitigates the ef
Page 232 and 233: 108. Under the current law, forfeit
Page 234 and 235: 126. Subsection (2) applies where t
Page 236 and 237: 145. Subsection (1)(d) includes wit
Page 238 and 239: unless he or she obtains a court or
Page 240 and 241: 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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