Termination of Tenancies for Tenant Default - Law Commission

similarly be entitled to refer the notice to court, where for example injunctive relief
is required to restrain a breach of covenant or prevent further damage to the
premises.
Reform recommendations
4.79 A chief aim of our recommendations is for landlord and tenant to reach a
negotiated settlement of their dispute, thereby avoiding the need to engage the
court.
4.80 On reconsideration, we have concluded that there is a danger that the provisional
proposal that a tenant should be able to refer a tenant default notice to the court
might actually work against these aims. Service of a tenant default notice is a
pre-requisite for making a termination claim (unless the need for a tenant default
notice is dispensed with by the court) but it is by no means certain that a claim
will be commenced in every case where a notice is served. We would hope that
in a large proportion of cases service of the notice will prompt negotiations that
will lead to a settlement out of court. To allow a tenant or qualifying interest
holder who receives a tenant default notice to refer it to the court might therefore
precipitate litigation and expend court time in circumstances where the notice
might otherwise have led to a negotiated settlement.
4.81 Changes to the CP’s provisional proposals have also in our view rendered this
particular proposal unnecessary. As previously conceived, a pre-action notice
(now tenant default notice) would be served whether the landlord intended to
make a termination claim or unilaterally recover possession of the demised
premises. By referring the notice to the court, a tenant would be able to prevent
the landlord taking possession unilaterally. We have now revised our proposals
and no longer recommend that a landlord may unilaterally recover possession of
the demised premises. Instead, a landlord will, in restricted circumstances, be
able to make use of a summary termination procedure (set out in Part 7). But this
procedure is not commenced by service of a tenant default notice. 65 There is
therefore no possibility that a tenant who is served with a tenant default notice will
lose his or her tenancy other than by means of a court order.
4.82 We do not believe that it is necessary to make express provision for a landlord to
refer a tenant default notice to court to seek injunctive relief before making a
termination claim. A landlord may bring proceedings for an injunction or other
interlocutory relief in such cases under the general law.
SPECIAL REPAIRS PROCEDURE
4.83 The Leasehold Property (Repairs) Act 1938 Act offers protection for tenants
against claims brought by their landlords for damages for breach of repairing
covenants or for forfeiture on the ground of such a breach. The legislation was
passed to address the mischief of property speculators gaining a windfall by
buying cheap reversions of dilapidated properties whose tenants could not afford
to pay for repairs and then enforcing forfeiture for disrepair. Originally limited to
repairing covenants in long leases of small houses, the 1938 Act now applies to
65 Rather, the procedure will be commenced by service of a summary termination notice,
which the court can discharge on application by the recipient: see para 7.94 and following.
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