Termination of Tenancies for Tenant Default - Law Commission

take the preliminary steps to taking termination action (namely give a tenant
default notice 27 or a summary termination notice 28 ) unless the tenant has been
given an explanatory statement. 29
3.36 There may, however, be circumstances in which this would operate too harshly
on a landlord. We therefore recommend that the court should have power, on
application by a landlord, to dispense with the need for an explanatory statement
where it is just and equitable to do so. 30
3.37 The requirement to give the tenant an explanatory statement should apply only in
relation to post-commencement tenancies. Where a pre-commencement tenancy
contains a forfeiture clause or equivalent provision for re-entry on the ground of a
breach of covenant, this will serve to inform and warn the tenant that the tenancy
is at risk of termination if the tenant commits the breach in question. We accept
that many forfeiture clauses are written in rather opaque terms, which is one of
the reasons why we recommend a prescribed form of explanatory statement.
However, to require landlords to provide explanatory statements to tenants of
pre-commencement tenancies would impose an unacceptable burden on
landlords.
3.38 We recommend that, in the case of post-commencement tenancies, the
landlord should not be able to give or deliver a tenant default notice 31 or a
summary termination notice 32 in respect of a tenant default unless the
tenant has been given an explanatory statement relating to the tenancy, or
the court (on application by the landlord) thinks it just and equitable to
dispense with the need for such a statement. 33 The explanatory statement
should be in writing, in the prescribed form, and given in accordance with
prescribed requirements. 34
27 See Part 4.
28 See Part 7.
29 We recognise that this may result in the tenant being given an explanatory statement and
then a tenant default notice (or summary termination notice) in quick succession. However,
should the landlord take such action, this would be a matter for the court to take into
account should the landlord make a termination claim (or should the tenant seek a
discharge order): see Parts 5 and 7.
30 A useful analogy can be found in the Housing Act 1988, s 8(1)(a) and (b). The section
provides that the court cannot entertain proceedings for possession of a dwelling house let
on an assured tenancy unless the landlord has served on the tenant a notice and the
proceedings have begun within the statutory time limits stated in the notice. In cases where
this has not happened the requirement of notice may be dispensed with, but only where
the court considers it just and equitable to do so.
31 Draft Bill, cl 5(1).
32 Draft Bill, cl 19(1).
33 Draft Bill, cls 5(1)(b) and 19(1)(b).
34 Draft Bill, cl 5(3).
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