Termination of Tenancies for Tenant Default - Law Commission

Clause 33: Regulations and orders
153. Most of the subordinate legislation to be made under the Bill (for example,
regulations prescribing procedural matters in relation to notices) will be subject to
the negative resolution procedure in Parliament and the new National Assembly
for Wales constituted under the Government of Wales Act 2006. However, some
would be subject to the affirmative procedure, namely orders under clause 34(3)
to make consequential amendments to legislation.
154. The precise details of the scrutiny which will apply to secondary legislation
are matters for Parliament and the National Assembly for Wales if and when the
Bill is introduced. At this stage these matters are provisional and are included in
the Bill for the sake of completeness.
Clause 34: Amendments and repeals
155. Subsection (3) confers power to make consequential amendments to
legislation. While Schedules 6 and 7 make extensive amendments to the statute
book to take account of the new scheme, it is possible that some points have
been missed. Any exercise of this power, as would usually be the case with a
Henry VIII power, would be subject to the affirmative procedure in Parliament.
Clause 35: Commencement, extent and short title
156. Subsection (1) gives the Secretary of State power to make a
commencement order in relation to England and the Welsh Ministers power to
make a commencement order in relation to Wales. Given that the new scheme is
comprehensive and could not be readily segmented for the purposes of
implementation, this clause provides for all parts of the new scheme to be
brought into force at the same time.
Schedule 1: Exceptions and savings, etc.
157. This Schedule proceeds on the principle that the new scheme should, so
far as possible, impact on existing statutory arrangements between landlords and
tenants to the same extent as forfeiture currently does.
158. In paragraph 1, sub-paragraph (1)(a) refers to statutory tenancies under the
Rent Act 1977. Despite its name, a statutory tenancy is not an interest in land. It
is a personal right for the tenant to stay in premises under what the courts have
described as a “status of irremovability”. 9 It can be terminated only in accordance
with the 1977 Act and so is not liable to forfeiture.
159. Sub-paragraph (1)(b) refers to periodic tenancies arising under the Housing
Act 1985. Although, by contrast with a statutory tenancy under the Rent Act, a
periodic tenancy is an interest in land, it may not include a forfeiture provision. 10
160. Sub-paragraph (1)(c) refers to assured tenancies under the Housing Act
1988. Such tenancies are not liable to forfeiture. Section 5(1) of the 1988 Act
provides that an assured tenancy cannot be brought to an end by the landlord
9 Keeves v Dean [1924] 1 KB 685.
10 Housing Act 1985, s 86(2).
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