Termination of Tenancies for Tenant Default - Law Commission

future liabilities under the terms of the tenancy. This would normally operate to
release sureties and guarantors from their contractual liabilities to the landlord,
although each case would depend upon the relevant contract between the surety
or guarantor, the landlord and the tenant.
Consultation
5.24 The principle that a termination order should have the effect of terminating the
tenancy proved uncontroversial. At a meeting, HM Land Registry made the
important point that once they were presented with a termination order they
would be able to close the title of the relevant tenancy immediately as there
would be no possibility of the tenancy being revived retrospectively. 16
5.25 Consultees were in general sympathetic to the policy that the court should
normally order the tenant to give up possession on the same day as the tenancy
terminates. Such dissent as there was to this proposal concerned the extent of
the court’s discretion to postpone the date of termination once the landlord had
satisfied the court that termination should be ordered.
5.26 Four respondents suggested a maximum postponement of four weeks. 17 Two
respondents felt that the proposal lacked flexibility and that the length of the
respite period should vary according to the circumstances. The Judges of the
Chancery Division argued that the provisionally proposed six-week period “should
be capable of extension in cases of special hardship or where it is not practicable
for the tenant to vacate within that period”. Greater flexibility was also advocated
by Slaughter and May, who contended that the parties should be able to agree to
alter the respite period or should have the power to ask the court to alter it.
Reform recommendations
5.27 Save that we no longer intend to refer to termination orders as “absolute” (as we
do not think that this adds anything to the description of the order), we confirm
the provisional proposal that a termination order should have the effect of
terminating the tenancy on the date specified in the order. We also intend to
proceed with the CP’s provisional proposal that this date should, as a general
rule, be no later than six weeks after the date that the order is made. We are,
however, persuaded by those consultation responses urging more flexibility in
cases where exceptional hardship would be caused by a strict application of a
six-week limit. We therefore recommend that the court may set a longer period in
such cases, subject to a maximum of 12 weeks.
5.28 We also intend to proceed on the basis that a distinction must be drawn between
the termination of the tenancy and the landlord taking possession of the demised
premises. We recognise that in the overwhelming majority of cases the landlord
will be entitled to possession of the premises on the termination of the tenancy
and will want to take possession as soon as the tenancy comes to an end.
16 Under current law, HM Land Registry delays closing title for a period after a forfeiture has
been effected to take account of the possibility that the tenant or a derivative interest
holder may be granted relief which has the effect of reviving the tenancy.
17
Peter Smith of the University of Reading, Brian Jones & Associates, English Partnerships
and Lovells.
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