A Flexible tenancy is a type of secure tenancy, which is granted for a fixed term of at least two years. Many local authorities grant flexible tenancies for fixed terms of at least five years. At the end of the fixed term, the landlord has a mandatory ground for possession. However, for years, it was not clear how to terminate a flexible tenancy during the fixed term.
Ms Kalonga was granted a flexible tenancy for a fixed term of five years from 25 May 2015. Croydon LBC considered her to have participated in acts of antisocial behaviour and to have arrears of rent. Croydon LBC obtained an outright possession order. Ms Kalonga then instructed GT Stewart. We successfully appealed against the possession order and it was set aside. We subsequently argued that a flexible tenancy can only be terminated by forfeiture and that Croydon were prevented from doing so as there was no forfeiture clause in Ms Kalonga’s tenancy agreement. In light of the importance of the issue, the possession claim was transferred to the High Court for determination.
In June 2020, we reported the High Court decision of Croydon LBC v Kalonga which clarified the issue. The High Court ruled that a flexible tenancy could only be brought to an end during the fixed term if the terms of the tenancy agreement contained a forfeiture clause (or possibly a break clause). Given that Ms Kalonga’s tenancy did not have a forfeiture clause, the possession claim was dismissed.
We had also argued in the High Court that where the tenancy agreement contained a forfeiture clause, the landlord would have to use the forfeiture procedures. The landlord would have to serve a notice under s.146, Law of Property Act 1925 in respect of breaches (other than those relating to the non-payment of rent). Finally, the landlord would have to bring proceedings for an order under s.82(3). The High Court did not agree with Ms Kalonga on this point and held that the landlord did not have to follow a forfeiture-type route to recover possession of the property but could use any of general routes identified in the Housing Act1985 to recover possession of the property.
Croydon LBC appealed to the Court of Appeal. Ms Kalonga cross-appealed on the issue of which route the landlord should follow to obtain possession where the tenancy agreement contained a forfeiture clause.
Court of Appeal dismissed the LB Croydon’s appeal, and allowed Ms Kalonga’s cross appeal, ruling that the only way to terminate a fixed term secure tenancy during the fixed term was if the tenancy agreement contained a forfeiture clause and by obtaining an order for termination under s.82(1A)(b) Housing Act 1985. A copy of the judgement can be found here Croydon LBC v Kalonga [2021] EWCA Civ 77
There are c.30,000 flexible tenancies in England, the vast majority of which do not contain a forfeiture clause. This decision confers considerable security of tenure on tenants during the fixed term and also presents significant challenges for local authorities.
Denise Phillips was the solicitor representing Ms Kalonga and Justin Bates of Landmark Chambers led Anneli Robins of 4-5 Gray’s Inn Square in both the High Court and Court of Appeal.
