Termination of Tenancies for Tenant Default - Law Commission

specified in the notice is taken by the date specified and the landlord’s
reasonable costs are paid 39 that would be the end of the matter. An Option B
notice would make it clear that, whether or not the tenant takes the specified
remedial action, the landlord intends to make a termination claim on the grounds
set out in the notice.
4.53 An example of a pre-action notice was provided at Appendix B to the
Consultation Paper. This was merely an indication of how the notice might look
and was not intended to represent the final word as to its form and contents. The
precise form of the notice will be a matter for secondary legislation.
4.54 Most consultees who responded on this point were in favour of the provisional
proposals made in the CP. There was, however, some dissent and we have
taken the opportunity to reconsider this provisional proposal. We have come to
the conclusion that to require the landlord to indicate whether or not he or she
intends to make a termination claim if the tenant default is remedied will add
unnecessary complexity to the notice procedure. We do not therefore intend to
proceed with this aspect of our provisional proposal.
4.55 Under our recommended scheme, the tenancy continues following the service of
a tenant default notice (and will continue unless terminated by the court). As long
as the tenancy is extant the tenant should be expected to perform his or her
obligations under it. The landlord, therefore, need not demand performance of the
obligations, including the tenant having to do whatever is necessary to put right
the default; the tenancy continues so the tenant should observe its terms.
4.56 We do not believe that this change will result in any increased danger that
landlords will make a termination claim in circumstances where it is inappropriate
to do so. The conduct of the landlord and the tenant must in any event be
considered by the court when making any order under the scheme. We expect
that, as in the current law, 40 the court form on which landlords set out their claim
for a termination order will be in prescribed form. We intend that it will be
designed in such a way that landlords will be able to indicate that, although their
claim is for a termination order, a remedial order will satisfy their immediate
demands. If a landlord exclusively seeks a termination order but the court
decides that a remedial order (or indeed no order) is more appropriate, the
landlord is liable to be penalised in costs. This should act as a deterrent to a
landlord who might consider using the threat of a termination claim to intimidate
his or her tenant whose default does not justify such action.
4.57 We recommend that the tenant default notice:
(1) must be in writing and in the prescribed form; 41
(2) must give particulars of the default (or defaults); 42
39 Where the tenancy provides for payment of the costs of the notice.
40 Form N119.
41 Draft Bill, cl 4(2)(a).
42 Draft Bill, cls 4(1)(a) and 6(1).
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