Termination of Tenancies for Tenant Default - Law Commission

43. An application for a dispensation order might be made in a case where the
landlord has used the summary termination procedure but the tenant obtains a
discharge order (see clauses 22 and 23).
44. For example, if the six-month default period has expired by the time the
discharge order is made, the landlord would be unable to serve a tenant default
notice in respect of that tenant default (and would therefore be unable to make a
termination claim). However, the landlord could apply to the court for a
dispensation order to waive the time limits or the requirement to serve a tenant
default notice on some of the individuals concerned.
45. Another example of when this power might be used is where the landlord
has discovered that there is a qualifying interest in the tenancy but has been
unable to find an address or other contact details for the holder of that interest.
46. Subsection (3) acknowledges that a landlord may bring a termination claim
without having complied with one or more of the requirements prescribed by
clause 4(1). The subsection reflects what will be the practical reality; namely that
a court office, when issuing a claim, will not be able to establish whether a
landlord has complied with the notice requirements. The landlord will have to
apply for a dispensation order so as to regularise the claim retrospectively.
47. Subsection (6) ensures that, where some or all of the requirements of
clause 4 are dispensed with, the clauses dependent on service of a tenant default
notice are to be read subject to the order of the court.
48. As there may not have been a tenant default notice served by the landlord,
there may not be a deadline (see clause 6(2)(b) and (6)) after which the period
for bringing a termination claim will begin to run. Therefore, subsection (5)(a)
provides that a dispensation order must state the date by which the landlord is
entitled to bring a termination claim.
Clause 9: The court’s power
49. Subsection (1) confers a wide discretion on the court in a case where it
finds that there has been a tenant default. Any order the court makes must be
appropriate and proportionate.
50. Subsection (2) lists the new orders that are available to the court under the
new scheme (each of which is defined in clause 10 and then set out in more
detail in clauses 12 to 17). Subsection (1) does not restrict the court to making
one of those orders. It can make any other order otherwise available to it. Indeed,
it may decide to make no order at all if, for example, it considers the default to be
trivial.
51. Subsection (3) sets out the factors the court should take into consideration
when deciding what order to make. They are not ranked in order of importance.
Not all factors will be relevant to all cases.
52. Subsection (4) enables the court to require payments to be made or
security to be provided. This power may be used against any party to the
proceedings, not just the tenant.
223