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Council secures permission for appeal over secure flexible tenancies and possession during fixed term

The Court of Appeal has granted the London Borough of Croydon permission to appeal a High Court ruling on secure flexible tenancies and possession during fixed term, it has been reported.

In Croydon London Borough Council v Kalonga [2020] EWHC 1353 (QB) Mrs Justice Tipples concluded that, in the event of default by the tenant, the landlord could not determine a flexible tenancy prior to the expiry of the fixed term, unless the flexible tenancy contained a forfeiture clause which enabled 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 [Housing Act 1985]. The claim must therefore be dismissed,” he said.

Cornerstone Barristers, whose Kelvin Rutledge QC and Riccardo Calzavara are instructed by Jenny Fraser-Browne for Croydon LBC, said the first ground of appeal was that the words “subject to termination by the landlord” in s.82(1) Housing Act 1985 mean termination of the fixed-term tenancy by any lawful means available and not solely by re-entry or forfeiture.

The second ground of appeal arises only if the first ground is rejected: it assumes (without conceding) that Tipples J was right to restrict s.82(1) to termination by re-entry or forfeiture, and invites the Court of Appeal to construe the relevant tenancy terms as having that effect.

Cornerstone Barristers said that Lord Justice Floyd had granted Croydon permission on both grounds on the papers on the basis that they had a real prospect of success, and ordered expedition of the appeal hearing. 

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