Termination of Tenancies for Tenant Default - Law Commission

PART 2
OVERVIEW OF THE SCHEME
INTRODUCTION
2.1 The purpose of this Part is to give an overview of our recommended statutory
scheme for the termination of tenancies. It is by way of summary only. The detail
of the provisions is contained in the draft Bill (which is accompanied by
Explanatory Notes). The operation of the statutory scheme is discussed and
explained in more detail in the corresponding Parts of this Report.
ABOLITION OF FORFEITURE
2.2 The statutory scheme replaces the current law governing the forfeiture of
tenancies. Once enacted, a tenancy may only be terminated on the ground of a
breach of covenant where that breach is a “tenant default”, and then only by
means of “termination action”.
2.3 There are exceptions to this rule set out in Schedule 1 to the draft Bill. These
concern statutes currently in force which provide alternative means of bringing a
tenancy to an end on the ground of a breach of covenant. The ability of a tenant
to bring a tenancy to an end by accepting a repudiatory breach of covenant by
the landlord is unaffected by the scheme.
TERMINATION ACTION
2.4 Taking “termination action” means either making a “termination claim” or using
the “summary termination procedure”. These are distinct methods of terminating
a tenancy and cannot be used concurrently in relation to the same tenant default.
The landlord must elect which is the more suitable course to pursue. In either
case, the landlord is expected to serve a notice on the tenant (and holders of
certain qualifying interests in the tenancy) before taking action. Use of the
summary termination procedure is prohibited in certain defined circumstances,
most significantly where anyone is lawfully residing on the premises.
2.5 Termination action may only be taken by the “appropriate landlord”, defined as
the person who is the landlord under the tenancy (that is, the person entitled to
the reversion immediately expectant on the term of the tenancy) and who has the
right to enforce the covenant to which the default relates. In taking termination
action, the appropriate landlord must act in accordance with the provisions of the
statutory scheme. Purported termination action which does not comply with these
provisions will be of no effect.
2.6 Termination action may only be brought against the tenant for the time being, that
is, the person entitled to the term of the tenancy. An exception is where all or part
of the premises have been assigned in breach of covenant. In such
circumstances, the breach is to be treated as a breach by the person who has
become the tenant as a result of the unlawful assignment and he or she will be
deemed to have committed the tenant default. The incoming tenant may
therefore be subject to termination action.
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