Termination of Tenancies for Tenant Default - Law Commission

53. Subsection (5), although broadly drawn, will typically operate in a case
where the court decides to make an order for sale, a transfer order or a new
tenancy order but, at the time the order is made, the parties are not in a position
to complete the transaction. The language echoes that of section 39 of the
Supreme Court Act 1981 which enables the High Court to appoint another person
to execute a conveyance or other document where the person specified in the
order refuses to do so or has disappeared.
54. Subsection (6) applies section 39 of the Supreme Court Act 1981 to county
courts so that that section will be capable of applying to any order made under
this clause.
55. Subsection (7) disapplies section 9 of the Law of Property Act 1925 which
might otherwise have the effect of making the order itself automatically operate
as the conveyance. That could have awkward results in practice, particularly in
relation to registration of title, if the order did not specify all the relevant terms.
However, clauses 15(4) and 16(3) enable the court to make provision to that
effect where appropriate.
56. Clause 11 imposes restrictions on the court’s power to make some of the
new orders.
Clause 10: Section 9: interpretation
57. Clause 10 describes the new orders that are available to the court in
exercising its jurisdiction on a termination claim.
Clause 11: Restrictions on the court’s power
58. This clause places a number of restrictions on the wide discretion conferred
on the court by clause 9.
59. Subsection (3) provides that the court may not make an order for sale or a
transfer order if the tenancy contains an absolute covenant prohibiting the tenant
from assigning the demised premises, unless the landlord consents to the
proposed order.
60. Subsection (4) deals with qualified covenants under which a tenant may
assign but only with the consent of the landlord. Again, the court is entitled to
make an order for sale or transfer order if the landlord consents. However, if no
consent is forthcoming, the court may consider whether the landlord is acting
unreasonably. If the court is satisfied that consent is being unreasonably
withheld, it may make either of these orders.
61. Subsection (5) provides that in such a case the landlord’s consent is
treated as having been given. This would preclude an argument that an
assignment within subsection (4)(b) was made in breach of covenant and was
therefore an excluded assignment for the purposes of section 11 of the Landlord
and Tenant (Covenants) Act 1995.
62. Subsection (6) provides that where a charge contains a covenant by the
tenant not to assign the demised premises, an order for sale or transfer order
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