Termination of Tenancies for Tenant Default - Law Commission

Specify the time for remedial action
4.47 The CP provisionally proposed that a pre-action notice (now tenant default
notice) must inform the tenant of the date by which the landlord expects remedial
action to be taken. 36 How long a tenant should be given in order to remedy the
default would depend on the extent or complexity of the default, the CP
explained, but must be reasonable in the circumstances. If the default comprised
non-payment of rent, that period could be no less than seven days from the date
of service of the notice. During this period, the CP proposed that a landlord may
not take action under the scheme. 37
4.48 Consultees’ responses to this proposal suggested that it was somewhat
controversial. Although there was overall support for the principle that the tenant
should be given time to put right the default, the minimum seven-day period
proved to be a cause for concern. The general feeling was that this period was
too short, particularly where the defaulting tenant had gone out of occupation. A
number of suggestions were made for longer periods, ranging up to three
months.
4.49 Balanced against this was the justifiable concern of commercial landlords to be
able to obtain a termination order expeditiously and to proceed to recover
possession of premises in clear-cut cases of tenant default. For example, where
rent has gone unpaid for some time and there is no realistic prospect of the
arrears being paid off, a termination order ought to follow as a matter of course. It
would be unjust to require a landlord to wait a long period after serving a tenant
default notice before issuing proceedings.
4.50 We therefore intend to proceed with the proposal for a seven-day minimum. We
have, however, decided to amend the CP’s provisional proposal in one respect.
As discussed above, there may be cases where the landlord does not want the
tenant to attempt to remedy the tenant default or where the only remedy sought is
the payment of a sum of money. Even in these cases, the tenant and holders of
qualifying interests should be given a period of time in which to take legal advice
and reflect on their options. We therefore recommend that a seven-day
“moratorium before action” should apply in all cases, not just where the tenant
default complained of is non-payment of rent.
4.51 Beyond this seven-day minimum it will be a question for a court hearing a
subsequent termination claim to decide whether the deadline given was
reasonable in the circumstances. We do not consider that it would be helpful to
lay down strict time limits for different types of tenant default.
State what the landlord intends to do next
4.52 The CP provisionally proposed that the “pre-action notice” (now tenant default
notice) should be in one of two forms: Option A or Option B. 38 Each notice would
inform the tenant of the nature of the default and specify what is required of the
tenant. An Option A notice would inform the tenant that if the remedial action
36 CP, para 5.15(5)(c) and (6)(c).
37 CP, para 12.5(5).
38 CP, para 12.5(6).
64