Termination of Tenancies for Tenant Default - Law Commission

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16 30 Meaning of “qualifying interest” 192 Landlord and Tenant (Termination of Tenancies) Bill (1) The qualifying interests in a tenancy are— (a) any sub-tenancy of the whole or part of the demised premises, (b) any charge on the tenant’s or a sub-tenant’s interest in the demised premises, (c) any option to purchase, or right of pre-emption in respect of, the tenant’s or a sub-tenant’s interest in the demised premises, (d) any right to an assignment of the whole or part of the demised premises or to an assignment of a charge within paragraph (b), and (e) any right to an overriding lease of the demised premises. (2) “Charge” has the meaning given in section 132(1) of the Land Registration Act 2002 (c. 9). 31 Meaning of “knowledge” (1) The appropriate landlord’s knowledge includes knowledge of any fact of which an employee or agent of his— (a) has knowledge, and (b) is required to inform him. (2) The circumstances in which the appropriate landlord is to be taken to have knowledge of a qualifying interest in a tenancy include those where— (a) he has been notified of the interest in writing, or (b) the interest is a registered interest. (3) An interest is registered if it is registered in— (a) the register of title kept by the Chief Land Registrar, (b) the appropriate local land charges register, or (c) the register of charges kept by the Registrar of Companies. 32 General interpretation (1) In this Act— “appropriate national authority” means the Secretary of State (in relation to England) and the Welsh Ministers (in relation to Wales), “conduct” includes an omission, “court” means the High Court or a county court (but in sections 12(10) and 22(9) and paragraph 2(3)(b) of Schedule 4 is not restricted by that definition), “covenant” has the meaning given in section 1(4), “discharge order” has the meaning given in section 22(5), “dispensation order” has the meaning given in section 8(2), “enactment” includes an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978 (c. 30), “joint tenancy adjustment order” has the meaning given in section 10(9), “new tenancy order” has the meaning given in section 10(8), “order for sale” has the meaning given in section 10(5), “overriding lease” has the meaning given in section 19(2) of the Landlord and Tenant (Covenants) Act 1995 (c. 30), “prescribed” means prescribed by regulations, 5 10 15 20 25 30 35 40
Landlord and Tenant (Termination of Tenancies) Bill 17 “remedial order” has the meaning given in section 10(3), “summary termination notice” has the meaning given in section 18(3), “tenant default” has the meaning given in section 2(1), “tenant default notice” has the meaning given in section 4(2), “termination claim” means a claim of the kind referred to in section 3(2), “termination order” has the meaning given in section 10(2), and “transfer order” has the meaning given in section 10(6). (2) A reference in this Act to taking termination action in respect of a tenant default, or to making a termination claim or using the summary termination procedure on the ground of a tenant default, is to be read with section 3. (3) A requirement of this Act for a notice or any other thing to be in the prescribed form is satisfied if the notice or other thing is substantially in the prescribed form. (4) A reference in this Act to the giving or delivery of a tenant default notice or a summary termination notice is to be read with Schedule 3. 33 Regulations and orders Final provisions (1) The power to make regulations under this Act is exercisable by the appropriate national authority. (2) Regulations or an order under this Act— (a) may make different provision for different cases or circumstances; (b) may include supplementary, incidental, consequential, transitional or saving provision. (3) Regulations or an order under this Act must be made by statutory instrument. (4) A statutory instrument containing regulations under this Act made by the Secretary of State is subject to annulment in pursuance of a resolution of either House of Parliament. (5) A statutory instrument containing regulations under this Act made by the Welsh Ministers is subject to annulment in pursuance of a resolution of the National Assembly for Wales. (6) A statutory instrument containing an order under paragraph 2 of Schedule 1 or paragraph 5 of Schedule 3 is subject to annulment in pursuance of a resolution of either House of Parliament or the National Assembly for Wales. (7) A statutory instrument containing an order under section 34(3) may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament. 34 Amendments and repeals (1) Schedule 6 contains miscellaneous amendments. (2) Schedule 7 contains repeals. 193 5 10 15 20 25 30 35
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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
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equirement for service of a notice
Page 144 and 145: 7.51 The final restriction was: It
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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
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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 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
Page 242 and 243: termination notice (except where th
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Robin Sinclair, Solicitor Slaughter
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