Tribunals, Courts and Enforcement Act 2007

Part 3: Enforcement by Taking Control of Goods

Commentary on Sections: Part 3

Section 73: Landlord

354.This section defines “landlord” for the purposes of CRAR and accordingly identifies the person to whom CRAR is available. The definition in this section reflects the position in the current law of distress for rent as to who can distrain for rent arrears.

355.Subsection (1) sets out the general rule that the landlord is the person entitled to the immediate reversion in the property comprised in the lease. This is the person to whom the property will revert at the end of the lease.

356.In most cases it will be clear who is entitled to the immediate reversion of the property. However, subsections (3) to (7) clarify the position in four particular circumstances, each reflecting the current law on distress for rent. The circumstances are:

• (in subsection (3)) where the premises are let under a tenancy by estoppel;

• (in subsection (4)) where the premises are let by joint landlords;

• (in subsection (5) and (6)) where the let premises have been mortgaged;

• (in subsection (7)) where the court has appointed a receiver to deal with the let premises.

357.In the case of a tenancy by estoppel, the landlord may not have a legal estate in the land comprised in the lease, in which case he will not be entitled to the immediate reversion in that property. Subsection (3) makes it clear that such a person will nevertheless be a “landlord” for the purposes of CRAR and may therefore use CRAR to recover rent arrears from his tenant, provided that all the other conditions are satisfied.

358.Subsection (4) provides that if the premises are let under a joint tenancy, then any one of the persons who hold the legal estate will be the “landlord” for the purposes of CRAR. This means that any one of them may exercise CRAR and may do so to recover the rent due to all of them.

359.Subsections (5) and (6) deal with mortgaged properties. If the premises are let by a person who has taken out a mortgage on the property, then that person (who is the “mortgagor” or borrower) will normally be the “landlord” who is entitled to use CRAR to recover rent due under that lease. But if, at any time, the mortgagee (the lender) gives notice of his intention to repossess the property, then he will become the landlord thereafter in relation to that existing lease.

360.However, as with the current law on distress for rent, a mortgagee who becomes the landlord in this way will not be able to use CRAR to recover rent due under the existing lease if that lease is not binding on the mortgagee. This is because there will be no relationship of landlord and tenant between the mortgagee and the tenant under the existing lease. A lease will not be binding on the mortgagee if it is made after the mortgage was created, and if it is not made under either:

• an express leasing power contained in the mortgage deed, or

• section 99 of the Law of the Property Act 1925 (leasing powers of mortgagor and mortgagee in possession).

361.By virtue of subsection (7), a receiver who has been appointed by the court in relation to the property that is subject to the lease may exercise CRAR in the name of the landlord.

362.Subsection (8) provides that a landlord who has a right to use CRAR will need to authorise a certificated enforcement agent to exercise CRAR on his behalf (unless he himself is a certificated enforcement agent; see paragraph 2 of Schedule 12). The landlord will need to instruct the enforcement agent in writing. The form, content, and other requirements in relation to the written instructions from the landlord to the enforcement agent will be prescribed by way of secondary legislation.

363.Subsection (9) provides that any person who has a statutory right under any other legislation to use CRAR, is to be treated as “the landlord” for the purposes of CRAR.