Termination of Tenancies for Tenant Default - Law Commission

4.12 We recommend that the court should be entitled, on application by the
landlord, to make an order dispensing with the requirement to give a tenant
default notice where it thinks it just and equitable to do so. 7
THE DEFAULT PERIOD
4.13 It is for the landlord to decide whether or not to take termination action in
response to the tenant default. However, it would not be reasonable for the threat
of a termination claim to hang over a tenant’s head indefinitely. Once the landlord
has knowledge of the facts which constitute a tenant default that is actionable
under the statutory scheme, the landlord should have a limited period of time to
respond to that default by giving the tenant a tenant default notice. As we have
explained above, 8 waiver will no longer have any part to play in regard to the
scheme. We recognise that waiver may currently provide the tenant with a
defence against forfeiture where the landlord has acted ambivalently in relation to
the tenant. We consider that the requirement that the landlord give a tenant
default notice to the tenant expeditiously (that is, “use it or lose it”) will be an
important protection for the tenant under the scheme.
The CP’s provisional proposals
4.14 We explained in the CP our view that the opportunity to serve a pre-action notice
(now tenant default notice) should not be open-ended. At some stage after
becoming aware of a particular tenant default, the landlord should no longer be
able to rely on that default to take termination action. We provisionally proposed
that the notice must be served within six months of the landlord obtaining
knowledge of the tenant default. 9
4.15 The CP suggested that the default period should run from the day on which the
landlord first knew the facts constituting the tenant default. 10 However, it did not
make any attempt to define what should constitute knowledge for these
purposes.
4.16 The CP proposed that where the tenant default is a breach of a continuing
obligation, such as a covenant to keep premises in good repair, to insure them or
not to use them for a particular purpose, the default period should run from the
date when the breach was last continuing. 11 Such obligations are broken anew
every day on which the want of repair, failure to insure or prohibited use
continues, thereby providing a continually recurring ground for forfeiture.
4.17 The CP further proposed that the landlord and tenant should be able to extend
the default period by agreement. This might be appropriate where the landlord
and tenant are negotiating to resolve their differences. The landlord may be
reluctant to take the step of serving a tenant default notice while negotiations that
may lead to a settlement continue but would not want to lose the opportunity to
7 Draft Bill, cl 8.
8 Para 3.105 and following.
9 CP, para 12.5(2).
10 CP, para 12.5(2).
11 CP, para 12.5(2).
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