Consultation Paper on the General Law of the Landlord and Tenant

perhaps, not so clear is what the position is where the lease is ofregistered land, because a mortgage of such land can be created onlyby a charge and not by sub-demise. 65 This point ought to be clarified.The Commission provisionally recommends that it should be madeclear that a chargee of a registered lease is entitled to apply for reliefagainst its forfeiture.14.25 Where relief is granted to the tenant, this restores theoriginal tenancy as if no forfeiture had occurred and the landlord canclaim rent and other payments accordingly. 66 However, where reliefis granted to a sub-lessee or mortgagee under section 4 of theConveyancing Act 1892, the vesting order provided for creates a newtenancy or new security. 67 It is arguable that the court should havediscretion to restore the original sub-tenancy, especially if thelandlord would prefer this. As the law stands under section 4, it is notclear what the position is as regards rent and other payments in theinterim period between the landlord instituting possessionproceedings and the sub-lessee or mortgagee obtaining a vesting orderfor a new tenancy or security. 68 Furthermore it appears that section 4does not permit the court to grant a new term longer than the subtenancy,nor does it give any guidance as to the terms of the newtenancy created by the vesting order. 69 These matters ought to beclarified. The Commission provisionally recommends that reliefagainst forfeiture granted to a sub-tenant or mortgagee should becapable of restoring the original sub-tenancy or mortgage as if noforfeiture of the head-lease had occurred and that the court shouldhave wide powers to determine the position of the partiesaccordingly. Where the court decides to confer a new tenancy or6566676869Section 62 of the Registration of Title Act 1964. There is no equivalent ofsection 87 of the English Law of Property Act 1925, which provides that acharge by way of legal mortgage operates as if the chargee obtained a subtermless by one day the mortgagor’s (lessor’s) term: see Grand JunctionCo Ltd v Bates [1954] 2 All ER 385.See the discussion in Maryland Estates Ltd v Bar Joseph [1998] 3 All ER193.Chelsea Estates Investment Trust Co v Marche [1955] Ch 328.Official Custodian for Charities v Mackey [1984] 3 All ER 689, on appeal[1985] 2 All ER 1016.It has been held in England that the court may vary the rent: see Ewart vFryer [1901] 1 Ch 489.177