Termination of Tenancies for Tenant Default - Law Commission

5.75 The First Report therefore recommended that the court should have the power to
release one or more joint tenants from the tenancy in prescribed circumstances. 58
The power would be exercised where not all of the joint tenants were willing to
submit to the terms on which relief from termination might be granted. On
application by one or more “willing” joint tenants, the court would order the
release of those “unwilling” joint tenants who by their refusal to apply for relief
had indicated that they no longer wished to be bound by the tenancy.
5.76 The tenancy would continue, otherwise unchanged, in the hands of the remaining
joint tenants. It is important to note that the outgoing joint tenant(s) would remain
liable for any breaches of the tenant covenants under the tenancy committed
prior to their release from the tenancy. They would, however, cease to be liable
on any of these covenants after the date that they ceased to be a joint tenant.
This would, as the CP explained, achieve a “clean break” for the outgoing
tenant. 59
5.77 It was acknowledged in the First Report that the release of any joint tenant from
liability under the covenants in the tenancy might prejudice the landlord, who
would subsequently have fewer people to look to perform the obligations in the
tenancy. At the same time, it was pointed out that a landlord who granted a joint
tenancy always assumed the risk that during the currency of the term the number
of tenants might be reduced by the operation of the doctrine of survivorship. The
First Report recommended that before making an order releasing a joint tenant
from his or her obligations, the court should consider whether the landlord would
be unjustifiably prejudiced. It should be open to the “willing” tenant(s) to make
proposals to overcome any prejudice to the landlord, such as the provision of a
surety or guarantor.
5.78 The recommendations in the First Report were carried forward into the CP where
three provisional proposals were made. 60 They can be summarised as follows:
(1) the court should be able to make an order releasing “unwilling” joint
tenant(s) from any future liability under the terms of the tenancy;
(2) the court should take steps to avoid prejudice to the landlord when
making such an order; and
(3) equivalent provisions should apply where qualifying derivative interests in
the tenancy are co-owned.
Consultation
5.79 The majority of responses to this proposal were supportive. The Bar Council
believed the current position to be unjust, recognising “that this proposal may be
controversial for some landlords” but believing strongly “that the safeguards
proposed will ensure that their interests are properly protected”. The Law Society
considered the proposal to be both “practical and helpful”.
58 First Report, para 12.5.
59 CP, para 9.8.
60 CP, para 12.9(1) to (3).
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