Termination of Tenancies for Tenant Default - Law Commission

The CP’s provisional proposals
4.6 The CP provisionally proposed that a landlord must serve a notice on his or her
tenant prior to commencing termination order proceedings, whatever the tenant
default complained of. 3 It also proposed that a copy of the notice should be
served on holders of those derivative interests falling within a qualifying class. 4
Consultation
4.7 This proposal was widely supported by consultees. The Bar Council believed that
“the requirement for a notice before action is fundamental to the protection of the
rights of tenants”. HH John Colyer QC considered the mandatory requirement for
a notice in all cases, including non-payment of rent, “essential to fair play” and
believed it would reduce litigation.
4.8 Since publishing the CP, we have met with members of the Council of Mortgage
Lenders. They were highly supportive of the suggestion that derivative interest
holders (including mortgagees) should receive a tenant default notice. They
confirmed that, at present, their members often learn of the forfeiture of a tenancy
over which a mortgage is secured only when HM Land Registry contact them
during the process of closing title, long after the forfeiture has been effected. 5
Reform recommendations
4.9 We intend to proceed with the substance of this provisional proposal with some
modifications. We replace the term “pre-action notice”, which we used in the CP,
with the term “tenant default notice”. We believe that this better describes the
function of the notice, which is to inform any recipient of the tenant default and to
encourage the tenant to take remedial action or enter into negotiations with the
landlord. The notice will not be followed by the making of a termination claim in all
cases. Indeed, the notice will have served its purpose if it leads to a negotiated
settlement.
4.10 We recommend that a landlord may not make a termination claim on the
ground of a tenant default unless he or she has given the tenant, and the
holder of any qualifying interest in the tenancy, a tenant default notice
specifying the tenant default. 6
4.11 We recognise that there may be circumstances in which it will be appropriate for
the court to dispense with the requirement that a landlord give a tenant default
notice to the tenant and to all qualifying interest holders before making a
termination claim. We do not believe that it would be helpful for legislation to
prescribe the specific circumstances appropriate to the exercise of such a power
but it should be stressed that we would anticipate these to be exceptional cases.
3 CP, para 12.5(1). A notice would also be required prior to the landlord exercising self-help
by what we called “unilateral recovery of possession”.
4 CP, para 12.7(5). Derivative interests are discussed in Part 6.
5
In the case of residential property let on a tenancy, but in no other case, the claimant must
file a copy of their particulars of claim with the court for service on anyone entitled to claim
relief against forfeiture (including a mortgagee): Civil Procedure Rules, Practice Direction
55, para 2.4.
6 Draft Bill, cl 4.
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