Termination of Tenancies for Tenant Default - Law Commission

epeatedly bring their landlord to the court door, only to comply with their
obligations at the last minute. This is not only disruptive and expensive but can
significantly interfere with the landlord’s cash flow. It is also wasteful of court
resources.
3.125 In all cases that reach adjudication, the court must take into account the conduct
of the parties before and during the course of the proceedings. This would
include any action the tenant has taken to remedy the tenant default. While it will
not normally be appropriate or proportionate to make a termination order where
the default has been remedied, this option should not be closed off altogether.
3.126 We recommend that the fact that the tenant default has been remedied
before the matter comes before a court should not preclude the court from
making a termination order where it is otherwise appropriate and
proportionate to do so.
Exceptions under current law
3.127 Section 146 of the Law of Property Act 1925 places restrictions on a landlord’s
ability to exercise a right of re-entry. The section requires prior service of a notice
on the tenant and provides the tenant and certain derivative interest holders with
a right to seek relief from forfeiture. The section does not, however, apply in a
number of circumstances, most significantly, in cases of non-payment of rent. 82
3.128 Other exceptions relate to covenants in mining leases which give various rights of
inspection and to conditions of forfeiture on a tenant’s bankruptcy where the
property falls into one of five special categories. Outside these categories, the
protection of section 146 applies for a year from the bankruptcy unless the
tenancy is sold during that time.
The CP’s provisional proposals
3.129 Under our recommended statutory scheme, no distinction is made between nonpayment
of rent and other breaches of covenant. The CP provisionally proposed
that there should be no equivalent of the other exceptions found in section 146. 83
It was argued that, in the context of the proposed new statutory scheme, these
complex exceptions, which in many cases are obsolete, would no longer be
necessary.
3.130 We therefore provisionally proposed that all events falling within the general
definition of tenant default should attract the court’s power to make an order
under the scheme. The existing exceptions to the court’s powers to grant relief
from forfeiture would therefore have no counterpart in the proposed scheme.
Consultation
3.131 All responses on this point agreed with the provisional proposal save for one
which argued that the current law should be retained in its entirety.
82 Law of Property Act 1925, s 146(11).
83 See CP, para 4.19.
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