Termination of Tenancies for Tenant Default - Law Commission

landlord assigns the reversion, he or she loses the right to forfeit. But that right
can be expressly reserved on an assignment of the reversion. 3
18. There is no corresponding provision under the new scheme. Subsection
(6)(a) and (b) provides that the person entitled to the immediate reversion will be
entitled to take termination action only if he or she is also entitled to enforce the
covenant concerned.
19. Subsection (5) ensures that the tenant cannot terminate the tenancy under
the new scheme.
Clause 4: Tenant default notice
20. Before making a termination claim, a landlord must serve a tenant default
notice in accordance with this clause (unless the need to do so has been
dispensed with by the court under clause 8). The references to giving and
delivering a notice are, as a result of clause 32(4), to be read with Schedule 3
(which makes detailed provision about how a notice may be given and when it is
to be treated as given).
21. The tenant default notice must be given within the default period.
Subsection (3) explains how the default period is to be calculated. The day on
which the default period commences will in practice depend on whether the
breach is a “once and for all” breach or a continuing breach. The question of what
amounts to knowledge for the purposes of subsection (3) is dealt with in clause
31.
22. Subsection (4) operates where section 168 of the Commonhold and
Leasehold Reform Act 2002 applies. That is where, under a long residential lease
(generally speaking, one granted for a term of over 21 years), there has been a
breach of covenant by the tenant other than non-payment of rent. In that case,
the default period does not begin until it has been finally determined by a
Leasehold Valuation Tribunal that a breach has occurred, or the tenant has
admitted the breach, or a court or arbitral tribunal has finally determined that a
breach has occurred.
23. Subsections (5) and (6) enable the parties to agree to extend the period for
serving a tenant default notice. Any such agreement must be made before the
end of the original six-month period or, if such an agreement has already been
made, before the end of the extended period set by the agreement. The
agreement cannot revive a default period which has already expired. The
mechanism is similar to that under section 29B of the Landlord and Tenant Act
1954.
Clause 5: Explanatory statement
24. This clause applies only to post-commencement tenancies (defined by
clause 28(4)). The explanatory statement must be given to the tenant before the
3 Shiloh Spinners Ltd v Harding [1973] AC 691, 717, per Lord Wilberforce. See also London
and County (A&D) Ltd v Wilfred Sportsman Ltd [1971] Ch 764 and Kataria v Safeland
[1998] 1 EGLR 39.
220