Termination of Tenancies for Tenant Default - Law Commission

underlying principle that qualifying interest holders should receive a copy of the
tenant default notice was well received.
4.74 As part of the consultation process, we held a number of meetings with HM Land
Registry. It became clear that some holders of unregistered qualifying interests
might not be identifiable from the steps provisionally proposed in the CP. For
example, a sub-tenancy which is periodic or for a fixed term of less than seven
years is not required to be registered or noted against the registered title of the
tenancy.
Reform recommendations
4.75 We intend to proceed with the underlying proposal that a landlord must note the
details of any qualifying derivative interest holders on the tenant default notice,
and must give each qualifying interest holder a copy of the notice. However, we
have modified our other provisional proposals concerning qualifying interests in a
number of respects. We deal with these recommendations comprehensively in
Part 6.
4.76 Landlords will be required to serve a copy of the tenant default notice at the
demised premises addressed to “The Occupier”. We were persuaded that a
provision to this effect would increase the likelihood that those with a qualifying
derivative interest would be alerted to the landlord’s complaint of a tenant default.
We believe that this will meet the concerns arising from our meetings with HM
Land Registry. 63
THE RIGHT TO APPLY TO THE COURT TO CHALLENGE A NOTICE
The CP’s provisional proposals
4.77 The CP provisionally proposed that a tenant who is served with a pre-action
notice (now tenant default notice) may refer the notice to the court if he or she
disputes that the tenant default has occurred or has some other objection to the
notice. 64 Under this proposal, the court would be able to enquire into and rule
upon matters such as the contents of the notice and whether the tenant had been
given sufficient time to remedy the tenant default complained of. The court would
be able to make any order that it could have made had termination proceedings
been commenced by the landlord (including making no order and making orders
as to costs). The court would also be able to order the parties to attempt methods
of alternative dispute resolution.
Consultation
4.78 This provisional proposal received unanimous support. Peter Smith of the
University of Reading welcomed the proposed use of the court’s management
powers, which he noted would encompass some of the features of relief against
forfeiture but at a much earlier stage in the process. This “might enable the
dispute to be settled at an earlier and less costly stage.” HH John Colyer QC
agreed with the proposal but raised the question whether a landlord should
63 This is similar to the requirement in mortgage possession proceedings.
64 CP, para 12.5(3).
70