Termination of Tenancies for Tenant Default - Law Commission

Clause 23: Discharge order: supplemental
116. This clause provides that a tenant or a person who holds a qualifying
interest in the tenancy (within the meaning of clause 30), may apply for a
discharge order so as to prevent the termination of the tenancy at the end of the
period set out at clause 22(1).
117. Subsection (2) gives the tenant, or the holder of a qualifying interest in the
tenancy, one month to apply for a discharge order, with the month running from
the day when he or she is given the summary termination notice.
118. Subsection (3) sets out what the landlord must show to defeat an
application for a discharge order. There is a statutory presumption in favour of
making such an order, and if the landlord cannot establish all three conditions,
the discharge order must be made.
119. Subsection (4) allows the court to make a possession order at the same
time as dismissing an application for a discharge order.
Clause 24: Post-termination order
120. This clause applies where a tenancy has been terminated under the
summary termination procedure. It enables the former tenant, or the former
holder of a qualifying interest in the tenancy, to apply to the court. The court may
then make such order as it thinks appropriate and proportionate.
121. Subsection (3) lists three possible orders that the court may make. These
are not, however, the only orders that are available. The court is restricted in its
jurisdiction in one important respect. Subsection (4) provides that a posttermination
order cannot revive the former tenancy or any interest deriving out of
it by undoing the termination order. The former tenant might be granted a new
tenancy, or an overriding lease (and the new tenancy may be back-dated to the
date of termination of the former tenancy) but the former tenancy must in all
cases remain terminated.
122. The reference in this clause to an overriding lease is to be read with section
19 of the Landlord and Tenant (Covenants) Act 1995 (see clause 32(1)).
Clause 25: Landlord’s election
123. This clause prevents the landlord from pursuing both forms of termination
action concurrently in respect of the same tenant default. The summary
termination procedure is expected to be used in clear-cut cases. For those that
are not clear-cut, there is the termination claim.
124. By subsection (1), where the landlord has given a tenant default notice to
the tenant (whether or not the landlord is proceeding with a termination claim) he
or she may not give or deliver a summary termination notice in respect of the
same tenant default.
125. Subsections (2) to (4) apply to those cases where, for whatever reason, a
landlord has made a termination claim without having served a tenant default
notice.
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