Termination of Tenancies for Tenant Default - Law Commission

to include such clauses and to allow landlords to take termination action for any
breach. As we explained in our First Report, this would “shorten tenancy
documents by obviating the need for a piece of verbiage which is at present
included, in nearly every case, as a matter of course”. 17
3.20 It is obvious that this objective, which we continue to endorse, is only capable of
realisation in relation to post-commencement tenancies entered into subsequent
to implementation of our statutory scheme. During the consultation process, we
have been persuaded that in relation to such tenancies it would be prudent to
require that an explanatory statement, outlining the possible consequences of
tenant default, is given to the tenant, and we explain this further below. But first
we describe how the statutory scheme would operate in relation to those
tenancies entered into prior to its implementation, which will have been drafted at
a time when the ability to forfeit the tenancy was dependent upon the inclusion of
a forfeiture clause in the tenancy agreement.
Pre-commencement tenancies
3.21 We have always intended that our statutory scheme should apply to all tenancies,
whether entered into before or after the scheme comes into force. However, we
are aware that doing so may provide landlords of pre-commencement tenancies
that do not contain a right of re-entry with a means of terminating the tenancy that
they did not previously enjoy.
3.22 We recognise that this would materially enhance the rights of such a landlord at
the expense of his or her tenant and fundamentally alter the bargain reached by
the parties. Such depletion of tenant’s security would be difficult to justify and, we
believe, could form the basis of a successful challenge pursuant to Article 1 of the
First Protocol of the European Convention of Human Rights.
The CP’s provisional proposals
3.23 As a result of these concerns, the CP provisionally proposed that, for tenancies
granted before the date on which the scheme comes into force, a breach of
covenant should comprise tenant default only if it was the subject of a forfeiture
clause. 18 We proposed a similar restriction in relation to tenancies granted after
the legislation is in force but under a pre-existing obligation, where that obligation
was such that a forfeiture clause was not to be included in the tenancy. 19
Consultation
3.24 Almost all consultees agreed with the CP’s provisional proposals, on the basis
that to do otherwise would be to defeat the commercial expectations of the
parties to the tenancy. English Partnerships did not agree on the ground that
some tenancies have been granted for very long terms and that as a result there
would be a lengthy period of transition.
17 First Report, para 5.4.
18 CP, para 12.4(3)(a).
19 CP, para 12.4(3)(b) and (c).
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