High Court judge hands down ruling on secure flexible tenancies and possession during fixed term

A landlord cannot determine a flexible tenancy prior to the expiry of its fixed term without a forfeiture clause even in the event of default by the tenant, the High Court has ruled.

In a case brought by the London Borough of Croydon against tenant Chipo Kalonga, Mrs Justice Tipples ruled that Croydon could not seek possession for rent arrears and alleged anti-social behaviour without having such a clause.

The council had in August 2017 served notice seeking termination of the tenancy agreement and recovery of possession and issued a claim in the Central London County Court.

The claim was made on grounds 1 and 2 of Schedule 2 of the Housing Act 1985, comprising rent arrears of £703.04 and the alleged anti-social behaviour.

In that court HHJ Bailey directed a separate trial in the High Court of the correct manner in which to determine a secure flexible tenancy during the fixed term and stayed the remainder of the claim pending its outcome.

Croydon argued that in the event of default by the tenant, a flexible tenancy can be determined by a landlord before the end of the fixed term by any of the three ways identified under section 82(1A) of the 1985 Act and the flexible tenancy did not need to contain a forfeiture clause.

Ms Kalonga maintained that a flexible tenancy can only be determined by the landlord before the end of the fixed term by forfeiture, and this could happen only if the tenancy contained a provision for re-entry in the event of breach of covenant.

She said there was no such provision and so whether or not she was in default, Croydon could not determine the tenancy agreement before its end.

In Croydon London Borough Council v Kalonga [2020] EWHC 1353 (QB) Tipples J said: “The conclusion I have reached is that, in the event of default by the tenant, the landlord cannot determine the flexible tenancy prior to the expiry of the fixed term, unless the flexible tenancy contains a forfeiture clause which enables the landlord to determine the tenancy at an earlier date.

“In this case the landlord does not rely on forfeiture to determine the tenancy agreement prior to the expiry of the fixed term, and there is no forfeiture clause in the tenancy agreement. This means that, even if the tenant is in default as alleged, the landlord cannot bring the tenancy agreement to an end before the expiry of the fixed term by any of the ways identified in section 82(1A) of the 1985 Act. The claim must therefore be dismissed.”

Mark Smulian