Termination of Tenancies for Tenant Default - Law Commission

More documents

Recommendations

Info

Reform recommendations 3.132 We recommend that there should be no exceptions to the application of the statutory termination of tenancies scheme equivalent to those currently contained in section 146(8) to (10) inclusive of the Law of Property Act 1925. 84 84 Draft Bill, sch 7. 54
PART 4 MAKING A TERMINATION CLAIM (1): TENANT DEFAULT NOTICE INTRODUCTION 4.1 A central feature of our recommended statutory scheme is the imposition of an obligation on the landlord to serve written notice on the tenant, and on holders of certain interests derived from the tenancy, that the landlord intends to take action to terminate the tenancy. 4.2 The statutory scheme makes provision for two forms of notice to be given by the landlord prior to taking termination action: (1) The tenant default notice is the notice that must be given where the landlord intends to make a claim to the court for a termination order on the ground of the default (in other words, make a termination claim). This notice is the subject of this Part. (2) The summary termination notice is the notice that must be given where the landlord wishes to use the summary termination procedure (that is, in circumstances where the landlord believes that the tenant has no reasonable prospect of defending a termination claim). This procedure is the subject of Part 7. MANDATORY WRITTEN NOTICE 4.3 The current law requires landlords to serve a notice on the tenant before proceeding to enforce forfeiture either by court proceedings or by physical reentry. 1 However, the notice requirement does not apply where a landlord intends to forfeit for non-payment of rent and landlords are not obliged to give any notice to holders of derivative interests in the tenancy that is to be forfeited, even to a mortgagee in possession. 2 4.4 We consider these to be defects in the current law. It seems to us that to provide the tenant and holders of certain derivative interests with adequate notice of the landlord’s intentions is an essential protection which should apply in all cases. The provision of information not only publicises the landlord’s intentions and demands, it would also instigate negotiations that may lead the parties to an expeditious resolution of their dispute without recourse to litigation. 4.5 The reforms effected by the Civil Procedure Rules emphasise the importance of doing all that is possible to secure an out of court settlement and to promote the free and full exchange of information between the parties. We believe that service of a notice prior to a termination claim will advance both objectives. 1 Law of Property Act 1925, s 146. 2 Smith v Spaul [2002] EWCA Civ 1830, [2003] QB 983. 55
Page 1 and 2:
The Law Commission (LAW COM No 303)
Page 3 and 4:
THE LAW COMMISSION TERMINATION OF T
Page 5 and 6: Consultation 40 Reform recommendati
Page 7 and 8: Consultation 68 Reform recommendati
Page 9 and 10: (7) Any other matter 102 THE LEASEH
Page 11: Restrictions on using the summary t
Page 14 and 15: where appropriate using the various
Page 16 and 17: etains an equitable jurisdiction to
Page 18 and 19: of the law”. A number of leading
Page 20 and 21: procedure, the tenancy will not ter
Page 22 and 23: Part 6 examines the position of tho
Page 24 and 25: 2.7 When a tenancy is terminated un
Page 26 and 27: unless valid notices have been give
Page 28 and 29: Transfer order 2.30 Only a qualifyi
Page 30 and 31: 2.41 Where a landlord serves a summ
Page 32 and 33: PART 3 TENANT DEFAULT INTRODUCTION
Page 34 and 35: scheme by characterising the obliga
Page 36 and 37: to include such clauses and to allo
Page 38 and 39: perform their obligations under the
Page 40 and 41: SPECIAL CASES OF TENANT DEFAULT Den
Page 42 and 43: Assignment 3.51 Most tenancies cont
Page 44 and 45: the incoming tenant of the assigned
Page 46 and 47: often stipulate that a right to for
Page 48 and 49: insolvency process having the same
Page 50 and 51: 3.93 In addition, section 81 of the
Page 52 and 53: 1996 and Chapter 5 of the Commonhol
Page 54 and 55: covenant is non-payment of rent, a
Page 58 and 59: The CP’s provisional proposals 4.
Page 60 and 61: do so by delaying until the default
Page 62 and 63: it is unlikely that a tenant would
Page 64 and 65: (4) give the date by which action m
Page 66 and 67: Specify the time for remedial actio
Page 68 and 69: (3) must specify in respect of the
Page 70 and 71: agreement (subject to a maximum ext
Page 72 and 73: underlying principle that qualifyin
Page 74 and 75: all tenancies granted for seven or
Page 76 and 77: 4.92 As we intend to retain the sam
Page 78 and 79: PART 5 MAKING A TERMINATION CLAIM (
Page 80 and 81: e set off against the cost of carry
Page 82 and 83: future liabilities under the terms
Page 84 and 85: (6) where a tenancy comes to an end
Page 86 and 87: 5.43 During the period of the stay,
Page 88 and 89: described. During the consultation
Page 90 and 91: termination of a tenancy under the
Page 92 and 93: 5.69 We recommend that the proceeds
Page 94 and 95: 5.75 The First Report therefore rec
Page 96 and 97: making any order under the scheme t
Page 98 and 99: 5.93 The CP provisionally proposed
Page 100 and 101: of the parties. 78 Proportionality
Page 102 and 103: past conduct of the parties. This m
Page 104 and 105: (7) Any other matter 5.127 It would
Page 106 and 107:
PART 6 QUALIFYING INTERESTS INTRODU
Page 108 and 109:
1925 extends to lessees, under-less
Page 110 and 111:
according to the lease without any
Page 112 and 113:
interchangeably by the courts, by s
Page 114 and 115:
entitled to use the scheme to prote
Page 116 and 117:
(2) if not in occupation, a right w
Page 118 and 119:
property. The simplest means of ens
Page 120 and 121:
(1) What should the landlord be exp
Page 122 and 123:
claim with the court for service on
Page 124 and 125:
have to apply for relief, which, if
Page 126 and 127:
qualified covenant not to assign th
Page 128 and 129:
that it is both appropriate and pro
Page 130 and 131:
order unless the person who holds t
Page 132 and 133:
CP suggested, close down any potent
Page 134 and 135:
PART 7 SUMMARY TERMINATION PROCEDUR
Page 136 and 137:
action rather than by physical re-e
Page 138 and 139:
Paper was published. 22 It proposed
Page 140 and 141:
7.28 It was hoped that this recomme
Page 142 and 143:
equirement for service of a notice
Page 144 and 145:
7.51 The final restriction was: It
Page 146 and 147:
in the sub-tenant being removed fro
Page 148 and 149:
termination claim, the summary term
Page 150 and 151:
7.71 The summary termination proced
Page 152 and 153:
Repairing covenants 7.79 The repair
Page 154 and 155:
7.88 We do not wish to discourage t
Page 156 and 157:
dispensation power will only be exe
Page 158 and 159:
to costs under the summary terminat
Page 160 and 161:
7.112 We recommend that: specifying
Page 162 and 163:
PART 8 LIST OF RECOMMENDATIONS PART
Page 164 and 165:
8.13 We recommend that the Insolven
Page 166 and 167:
(a) the day after the deadline spec
Page 168 and 169:
(6) if the court dismisses an appli
Page 170 and 171:
8.39 We recommend that, where a ten
Page 172 and 173:
8.49 We recommend that: (1) where t
Page 174 and 175:
(4) the default is a breach of cove
Page 176 and 177:
APPENDIX A DRAFT LANDLORD AND TENAN
Page 178 and 179:
ii Interpretation, etc. 28 Meaning
Page 180 and 181:
2 178 Landlord and Tenant (Terminat
Page 182 and 183:
4 180 Landlord and Tenant (Terminat
Page 184 and 185:
6 (8) This section is subject to se
Page 186 and 187:
8 13 Remedial order 184 Landlord an
Page 188 and 189:
10 186 Landlord and Tenant (Termina
Page 190 and 191:
Page 192 and 193:
Page 194 and 195:
16 30 Meaning of “qualifying inte
Page 196 and 197:
Page 198 and 199:
20 Preliminary 196 Landlord and Ten
Page 200 and 201:
22 Proper address 198 Landlord and
Page 202 and 203:
Page 204 and 205:
26 Settled Land Act 1925 (c. 18) 4
Page 206 and 207:
Page 208 and 209:
Page 210 and 211:
32 Protection from Eviction Act 197
Page 212 and 213:
34 Landlord and Tenant Act 1985 (c.
Page 214 and 215:
Page 216 and 217:
38 (2) After that subsection, inser
Page 218 and 219:
40 Settled Land Act 1925 (c. 18)—
Page 220 and 221:
APPENDIX B EXPLANATORY NOTES TO THE
Page 222 and 223:
landlord assigns the reversion, he
Page 224 and 225:
33. For example, if a tenant defaul
Page 226 and 227:
53. Subsection (5), although broadl
Page 228 and 229:
If the court is satisfied of this,
Page 230 and 231:
91. Subsection (4) mitigates the ef
Page 232 and 233:
108. Under the current law, forfeit
Page 234 and 235:
126. Subsection (2) applies where t
Page 236 and 237:
145. Subsection (1)(d) includes wit
Page 238 and 239:
unless he or she obtains a court or
Page 240 and 241:
person who is the tenant as a resul
Page 242 and 243:
termination notice (except where th
Page 244:
Robin Sinclair, Solicitor Slaughter
show all

Termination of Tenancies for Tenant Default - Law Commission

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?