Termination of Tenancies for Tenant Default - Law Commission

each”. It argued that, where there has been non-compliance with a remedial
order, an absolute termination order should be granted in all but wholly
exceptional circumstances. Otherwise, the Federation saw a danger that the
courts would allow “an endless number of ‘last chances’” and remedial orders
would lose their value as a means of enforcing performance of the tenant’s
obligations.
5.38 Despite these diverse opinions, the overall tenor of responses was favourable.
The Bar Council welcomed the proposals concerning termination orders and
remedial orders and felt that “in particular, the two-stage court process proposed
for remedial orders will remove the current uncertainties under the law of
forfeiture which create potential injustice for both landlords and tenants”.
Reform recommendations
5.39 In light of the consultation responses that we received, we have reviewed the
purpose and function of a remedial order. It is essential in our view that noncompliance
with the terms of a remedial order should be visited with serious
consequences for the tenant, and that landlords should not be faced with the
prospect of a series of adjourned hearings of their termination claims. We are
mindful of the effect of our final recommendations on court resources. It would be
highly undesirable for court lists to be filled with return dates that will, in many
cases, be vacated at short notice or with no notice at all.
5.40 We have considered, but have ultimately rejected, the suggestion that a remedial
order should operate in a manner akin to a suspended possession order. This
was the approach taken in the First Report, where it was recommended that the
court would specify the date on which the tenancy would terminate should the
tenant not comply with the terms of the remedial order. We did not carry through
this recommendation in the CP because we concluded that it would leave the
parties to the tenancy and any third party with an interest that derives from the
tenancy (which will terminate together with the tenancy) in an unacceptable state
of uncertainty. How are they to know whether the tenant has complied with the
remedial order or not and therefore whether the tenancy has been terminated or
is still extant?
5.41 We were attracted to the idea put forward by some consultees that the onus
should be on the landlord to take the matter back to court where the tenant has
failed to comply with the terms of the remedial order. We believe that this would
carry with it less risk of wasted court time as a return date would not be set as a
matter of course. But we do not go so far as to recommend that the scheme
should presume compliance by the tenant with the terms of a remedial order. If
the making of a remedial order by the court were to bring the landlord’s
termination claim to an end, a landlord faced with a recalcitrant tenant who did
not comply with the terms of a remedial order would have to commence
proceedings to bring the tenant back to court to address the breach of the order.
This would inevitably involve delay and expense that we believe would be unfair
to landlords.
5.42 We therefore recommend that the making of a remedial order should not, of itself,
bring the landlord’s termination claim to an end. Instead, the remedial order
should operate to stay the landlord’s claim for a period of three months from the
day on which the tenant was to complete the specified action.
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