Court finds for tenant over possession of under-occupied property

The Court of Appeal has clarified the law over when a council should serve a notice seeking possession from a resident who has succeeded to a tenancy.

In 2014 Mr Yavuz Yildiz succeeded to his late father’s tenancy of a four-bedroom house in September 2014 pursuant to section 89 of the Housing Act 1985. In January 2015, the London Borough of Hackney decided he was under-occupying the property and would be required to move.

The case, Yildiz v London Borough of Hackney [2019] EWCA Civ 1331, concerned the interaction between Ground 15A of Schedule 2 of the Housing Act 1985 and Section 83.

Representing Mr Yildiz, barristers from Garden Court Chambers said ground 15A applies when someone has succeeded to a tenancy following the death of a family member. If the landlord deems the property too large for their needs, 15A provides a mechanism to seek possession if a court finds this reasonable. The tenant must be given notice of seeking possession and proceedings must be commenced more than six months and less than twelve months after the notice has been served.

Alternatively, the landlord can seek possession without service of a notice, but must bring proceedings more than six months but less than twelve months after it becomes aware of the previous tenant’s death. Section 83 allows a court to dispense with the requirement for the service of a notice if it finds that to be ‘just and equitable’.

The Court of Appeal was asked to decide whether, if a court decides it is just and equitable to dispense with the need to serve a notice of seeking possession, this has the effect of also dispensing with the requirement to bring the proceedings within the alternative time limit of not less than six months and not more than twelve months after the landlord became aware of the previous tenant’s death.

Newey LJ said Hackney had issued proceedings “neither within 12 months of the ‘relevant date’ nor while [a notice issued on] 23 June 2015 was in force”.

He said: “It seems to me that Hackney was not entitled to rely on ground 15A and that the appeal should be allowed.”

The judge explained that due to a clerical error, Hackney did not issue possession proceedings during the 12 months period notice remained in force.