Law Commission consultation on business tenancies: modernising security of tenure

We provisionally propose that, if a validation process is retained for agreements to surrender, it should mirror the new process we have provisionally proposed for contracting out (see Consultation Question 8). An agreement to surrender would need to contain the following two elements (together referred to as “the prescribed wording”): 

1. a prescribed warning explaining to the tenant (in similar terms to the current warning notice) that they are agreeing to surrender a protected tenancy and the implications of doing so; and

2. a prescribed declaration signed by the tenant on signing the agreement, confirming that they have read and understood the terms of the warning. 

Provided the agreement to surrender contained the prescribed wording, it would be valid, even where the identity of the landlord and/or the tenant changed (because their interest was transferred to a successor in title) between the agreement being entered into and the surrender taking effect. 

Do consultees agree?

Please explain why.

In order that the prescribed wording is prominently displayed within the agreement to surrender: 

1. we provisionally propose that the prescribed wording should be included in outlined text box(es) in the lease. Do consultees agree?
2. we invite the views of consultees as to whether prescribed wording should be displayed in a particular position within the agreement to surrender (for example, at the start of the agreement, or at the end of the agreement by the signature block). If so, where should it be displayed?
3. we invite the views of consultees as to whether there are any other ways in which the prescribed wording could be displayed in the agreement to surrender to ensure tenants are aware of it and its importance.

Please use the text box below to answer the three numbered questions above.

If a validation process is retained for agreements to surrender, and reformed as set out in Consultation Question 12, we provisionally propose that it should be possible for tenants to enter into such agreements with prospective landlords, provided that the validation process is complied with. Do consultees agree?

Please explain why.

If a validation process is retained for agreements to surrender, we provisionally propose that the law should be clarified to ensure that it is possible to enter into a valid agreement to surrender part of the demised premises (provided the validation process is undertaken). Do consultees agree?

Please explain why.

We invite the views of consultees as to:

1. whether the decision in the case of Allnatt London Properties Ltd v Newton [1984] 1 All ER 423 causes problems in practice today for landlords and/or tenants; and
2. if so, (a) what changes to the 1954 Act could be made to address the problem; and (b) whether our proposed reforms to the validation process, which we set out in Consultation Question 12 above, would improve the current position. 

Please explain why. 

We have provisionally proposed that, if the validation process is retained for agreements to surrender, it should be reformed (see Consultation Questions 12 to 14). In light of these provisional proposals, do consultees think that the validation process should be retained or abolished for agreements to surrender? Please explain why.

If consultees think that the validation process should be retained for agreements to surrender, should it also apply to express written surrenders of protected tenancies? Please explain why.

We invite the views of consultees on the following questions, relating to section 28 of the 1954 Act.

1. What purpose, if any, does section 28 serve and/or what benefits, if any, does section 28 bring? 
2. What problems, if any, does section 28 cause? 
3. Should section 28 be reformed or repealed? If it is considered that section 28 should be reformed, what reforms are required? 
4. Would the answer to question (3) above change if: (a) the validation process is retained but reformed (as set out in Consultation Questions 12 to 14); or (b) the validation process is abolished (so that all agreements to surrender are permitted under the 1954 Act without any need to undertake any validation process)?