Termination of Tenancies for Tenant Default - Law Commission

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.
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