Croydon London Borough Council v Kalonga (2020) EWHC 1353 (QB)

Summary

A landlord under a fixed-term flexible tenancy did not have any right to determine the tenancy prior to the expiry of the fixed term because the tenancy agreement did not contain a forfeiture clause.  The tenancy did not fall within the ambit of s82(1)(b) Housing Act 1985 and the landlord could only seek possession under s107D at the end of the fixed term. 

Facts

On 25 May 2015 the claimant granted the defendant a flexible tenancy for a fixed term of five years.  The tenancy agreement contained a number of references to potential eviction and possession orders, including a statement that the landlord “may also take eviction action at any time” if the tenant breached the tenancy conditions or created a nuisance or annoyance, and that the landlord would not tolerate anti-social behaviour and would “take such action as we deem appropriate”.    

In August 2017 the claimant served a notice seeking termination of the tenancy and recovery of possession and then issued a possession claim.  The claim was made on the grounds of rent arrears and anti-social behaviour (grounds 1 and 2 of Schedule 2 to the Housing Act 1985). 

Various procedural issues arose. In May 2019 HHJ Bailey directed a separate trial of a specific issue, namely “the correct manner in which to determine a secure flexible tenancy during the fixed term (including whether, and if so how, any principles relating to forfeiture apply)”.  He transferred the trial of the issue to the High Court. 

Issues

How does a landlord under a secure flexible tenancy obtain possession during the fixed term? 

Decision

The Honourable Mrs Justice Tipples dismissed the landlord’s claim for possession.  The lease did not contain a forfeiture clause: the wording relied on by the landlord did not amount to a clear statement of the landlord’s right to determine the tenancy before the end of the fixed term. 

The judge held that the tenancy was not “a tenancy for a term certain but subject to the termination of the landlord” within the meaning of s82(1)(b) HA 1985 because the absence of a forfeiture clause meant that it was not “subject to termination by the landlord”.   

The landlord had submitted that the tenancy did fall within s83(1)(b).  This did not require a forfeiture clause, and it was significant that whereas s82(3) referred to “a provision for re-entry or forfeiture” that phrase was not used in s82(1)(b). Similarly the tenancy was still “subject to termination” because it could be terminated by serving a notice under s83(1)(a).  The judge rejected these submissions – if the landlord did not have any right to forfeit the lease or serve a break notice then they did not have any right to determine the lease earlier than the expiry of the fixed term.  If the tenant fell behind with the rent, the landlord’s remedy would be to sue for the rent. 

The decision in Artesian Residential Developments Ltd v Beck did not assist the landlord as the tenancy agreement in Beck contained a proviso for re-entry. 

As the tenancy was not within the ambit of s82(1)(b) HA 1985 it could not be determined under s82(1A) by bringing proceedings.  The landlord would have to wait until the end of the fixed term in order to determine the tenancy under s107D.  

By Ceri Edmonds