Termination of Tenancies for Tenant Default - Law Commission

126. Subsection (2) applies where the landlord makes a termination claim
without serving a tenant default notice and the court makes a dispensation order
so as to regularise the claim. In that case, the landlord cannot give a summary
termination notice on the ground of the default specified unless the claim is
dismissed or abandoned (see subsection (4)).
127. Subsection (3) applies where the landlord makes a termination claim
without serving a tenant default notice and without obtaining a dispensation
order. The landlord has either not applied for a dispensation order or the
application has been dismissed. The word “purports” acknowledges that the claim
has yet to be regularised. In either case, the landlord cannot give a summary
termination notice unless the claim is dismissed or abandoned (see subsection
(4)).
128. Subsection (5) applies where the landlord has commenced the summary
termination procedure by giving a summary termination notice. The landlord may
not give a tenant default notice to the tenant in relation to the same tenant default
unless the summary termination notice is withdrawn or a discharge order has
effect in relation to the default.
Clause 26: Costs
129. This clause provides that, in order to recover costs incurred in connection
with preparing, giving or delivering a tenant default notice or a summary
termination notice, the landlord must reserve the right to recover them by stating
his or her intention to do so in the relevant notice.
130. The clause does not deal with the costs of the termination claim, or any
court action in connection with the summary termination procedure (such as
responding to an application for a discharge order). These would be dealt with
under the Civil Procedure Rules (Parts 44 to 48).
131. Subsection (3)(a) prevents “double recovery” of the landlord’s costs.
132. Subsection (3)(b) prevents the landlord from relying on the terms of the
tenancy (for example, the service charge provisions) to recover costs which are
not recovered under an order for costs made by the court.
Clause 27: The Crown
133. This clause provides that the Bill binds the Crown. Tenancies of land
leased to or by a government department will come within the new scheme.
Clause 28: Meaning of “tenancy”, “breach”, etc.
134. By subsection (2)(a), “sub-tenancy” (and therefore “tenancy”) will include
any tenancy deriving from that sub-tenancy.
135. By subsection (2)(b), the reference to a tenancy in equity will include an
agreement for a tenancy.
136. Subsections (6) and (7) expand the meaning of “breach of covenant”. Note
that, as a result of clause 1(4), “covenant” includes a condition, agreement or
term, and an implied covenant or a covenant imposed by law. The purpose of
232