Select Committee on Regulatory Reform Second Report

Proposal D: Notices requiring information

Present position

In order to comply with the Act's requirements, both parties may need to obtain information about current interests in the property. Generally the renewal procedure will be conducted between the occupying tenant and the "competent landlord", who may not be the immediate landlord. The identity of one of the parties may not be known to the other. So, for example, the landlord may need to ascertain whether the tenant occupies the whole of the property for his business, or whether he has sublet any part of it. And the tenant may wish to find out who is the "competent landlord", ie the most immediate reversioner with a sufficient interest in the property.[56]

Accordingly the Act allows the landlord or tenant to serve notice on the other requiring him to give the relevant information within a certain period.[57] The landlord, by serving notice in the prescribed form, can require the tenant to notify him within a month about the position regarding the occupation of the property, and of the existence and terms of any sub-tenancy. Similarly, the tenant can ask anyone holding a superior interest in the property or their mortgagee as to ownership of the freehold, the identity of the superior landlord, and the duration of his interest.


The Act does not provide any sanction against the party who does not respond to a notice. The Law Commission's consultations indicated that this caused much difficulty; and also that the scope of the provisions required revision.


Accordingly, the changes recommended by the Law Commission (and adopted by the Department[58]):

  • increase the extent of the information for which either party may ask

  • impose a duty to inform the enquirer of any material changes

  • provide for cases where a party transfers his interest to someone else; and

  • provide that the sanction for not complying with the duty to supply or correct the information will be damages for breach of the statutory duty.

More specifically, the reform proposals entail re-enacting and extending the terms of the present provision along the following lines.

Firstly, in response to a notice served by the landlord, the tenant should be under a duty to state:

whether he occupies all or part of the property for the purposes of a business carried on by him. This follows the current provision.[59]

details of any sub-letting. This also follows the current provision, but is to be extended to include information whether an agreement excludes the statutory renewal provisions in relation to a sub-tenancy.

who, to the best of his knowledge and belief, is the reversioner of any part of the property not owned by the person who served the notice.[60] This is an extension of the current provision.

Secondly, in response to a notice served by the tenant, the landlord (or his mortgagee) should be under a duty to state:

whether he is the freeholder, or the freeholder's mortgagee, and if not who, to the best of his knowledge and belief, is his immediate landlord and what is the length of his lease. This reproduces the current provisions.[61]

whether to the best of his knowledge and belief, the mortgagee is in possession and, if so, the mortgagee's name and address.[62] Again, this reproduces the current provisions.[63]

in the case of a divided reversion (i.e. where distinct parts of the property comprised in a single lease are owned by different landlords), who is, to the best of his knowledge and belief, the reversioner of any other part of the property. This provision is new.[64]

As at present, the notice by the tenant or landlord may only be served during the last two years of a lease term, and the requisite information must given by the recipient within one month of the service of the notice.

Obviously, information which was correct when it was given in response to a statutory notice can become inaccurate later on; so it is proposed to impose a duty on the recipient of the notice to keep the information up to date for a relatively short period. Thirdly, therefore, the person giving the information in response to a notice must correct any material change in it during the period of 6 months from the date of service of the notice requiring the information.[65] This would be a new provision.

The remaining proposals follow upon the preceding proposal and deal with cases where the recipient of a notice transfers his interest in the property. The duty to revise information would not continue to bind a person who has parted with his interest in the property, provided he gave the other party notice of the change of ownership. More specifically, they are to the following effect:[66]

  • If the recipient notifies the person serving the notice that he has transferred his interest and of the new owner's name and address, the duty to notify changes in the information would cease. A fresh notice can be served on the transferee. If, however, the recipient only transferred his interest in part of the property, the duty would continue in relation to the part he retains.

  • If the person who gave the notice requiring information subsequently transfers his interest in the property, the recipient's obligation becomes one to supply the information to the transferee if either the transferor or the transferee gives the recipient notice of the transfer and the transferee's name and address. If notice of the transfer is not given, the duty to provide information can be performed by giving it either to the transferor or transferee.

Finally, the Law Commission recommended that the statutory duties to provide information should be supported by an express sanction. Accordingly, the Department proposes that the Act be amended to allow civil proceedings for breach of statutory duty in respect of any failure to supply or revise information in response to a statutory notice.[67] The court would also be able to ensure compliance with the duty.[68]

Imposition of new burden/re-enactment of existing burden

These provisions would re-enact existing burdens on landlords and on tenants regarding the information required to be given by the recipient of a notice served under the relevant provisions of the Act. They would also impose new burdens by:

  • extending the information required

  • requiring the recipient of such a notice to keep the information up to date by requiring a party to notify the other that he has transferred his interest in the property; and

  • expressly providing that civil proceedings for breach of statutory duty may be brought in respect of any failure to supply or update the information concerned, and that the court can ensure compliance with the duty.[69]


The burdens so imposed would have the benefit of facilitating the smoother operation of the renewal and termination procedures. We are satisfied that they are proportionate to that benefit (but see below). We are also content that the provision allowing civil proceedings for breach of the relevant duties, and enabling the court to ensure compliance, is proportionate to the benefit of ensuring that parties may receive the necessary information, or obtain compensation if they do not.

A number of consultees were unhappy about this aspect of the proposal, arguing that the requirement to keep the information up to date for a period of six months would represent a disproportionately large burden on recipients, and particularly those landlords who have a large number of tenants. It was suggested that provision should be made for recipients of notices to be reminded of their obligations. The Department's response was:

While the obligation to keep information up­to­date for six months could be onerous, the other party's rights could be in jeopardy if this does not happen. The Department does not consider that it would be sufficient for parties to respond only when they have received reminder notices. If for any reason, the reminder notice did not reach the intended recipient, the other party might be unable to operate the statutory procedures.[70]

This response is unconvincing. The Department's argument against reminder notices might equally well apply to the original statutory notice which required the information in the first place. Nevertheless, the importance for a party's ability to operate the renewal procedures of ensuring that the information is up to date is not in doubt. A party is likely to be prejudiced, and the smooth operation of the Act hindered, if no duty were imposed on the recipient of the notice to update the information. Given that the updating obligation is for a limited period only (6 months), and that the obligation will cease once the recipient of the notice transfers interest in the property and notifies the person who served the notice of the transfer, we are therefore satisfied that this burden is not disproportionate to the benefit which is likely to result.

Necessary protection

The provisions of the Act requiring parties to give information requested in due form are designed to protect the parties concerned by enabling them to obtain the information necessary for them to exercise their rights under the Act effectively. That protection is not reduced; rather, it is extended, as the extent of the information which may be obtained in this way is increased. We are satisfied that this proposal would not remove any necessary protection.

56   The competent landlord is the owner of the fee simple or the a leasehold interest which will not come to an end within 14 months by effluxion of time or in respect of which notice to terminate has been served under the Act: s 44(1). If the immediate landlord does not fulfil these conditions, the competent landlord will be the next superior landlord who does. The reason for this provision stems from the fact that the immediate landlord of the tenant carrying on the business may himself only hold a leasehold interest. If that landlord's interest is shortly about to expire, there is little point in requiring him to grant a new tenancy. So, the Act disregards for the renewal purposes a landlord who has only a short leasehold interest.  Back

57   S 40 Back

58   Proposed order, articles 23 and 24. Back

59   But the provision will have an extended scope in the light of the proposals as to companies and their controlling shareholders: see paras 85-102 above. Back

60   Under another proposal, where there is a divided reversion, the landlords would have to act collectively (see paras 174-177 below), but there could be circumstances where one reversioner did not know the identity of another reversioner. Back

61   S 40(2)(a)(b) Back

62   If there is mortgagee in possession, he is the person with whom the tenant must conduct the renewal procedure. Back

63   S 40(3) Back

64   This is intended to help a tenant who wanted a new tenancy and who would have to serve his request on all the landlords: see paras 174-177 below. Back

65   A duty to update information for a long period would be to impose an unduly onerous burden, particularly since the breach of the duty could result in the payment of damages.  Back

66   Article 24. Back

67   Proposed order, article 24 (new section 40B). Back

68   This would confirm what appears to be the present position. Back

69   The Department considers the inclusion of a sanction for breach of statutory duty to be the removal of an anomaly rather than the creation of a new burden; and therefore do not address the question of proportionality. However, under s 2(1)(a) of the Regulatory Reform Act, creation of a sanction represents the imposition of a burden. Back

70   Explanatory statement, Annex B1, para 26. Back

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Prepared 19 December 2002