How do you terminate a flexible tenancy during the fixed term?
Since the Localism Act 2011, flexible tenancies were born. 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, it has never been clear how to terminate a flexible tenancy during the fixed term. That is until the decision of Croydon LBC v Kalonga which now clarifies the issue.
GT Stewart represented Ms Kalonga a flexible tenant of Croydon LBC. She had a flexible tenancy for a fixed term of five years from 25 May 2015. Croydon LBC considered that she had been guilty of anti-social behaviour and sought possession under Ground 2, Sch.2, Housing Act 1985. An outright possession order was made. Gt Stewart were then instructed and we sought to set aside the possession order and argued that a flexible tenancy could only be terminated by forfeiture and that there was no forfeiture clause in her tenancy agreement. The county court noted that there were around 30,000 flexible tenancies granted in England and that the majority of local authorities did not include a forfeiture clause in their terms of tenancy. In light of the importance of the issue and the large number of tenancies it affected, the possession claim was transferred to the High Court for determination.
The High Court dismissed the possession claim. It was held that a fixed term tenancy was not capable of being brought to an end by the landlord otherwise than by exercise of some contractual power such as a forfeiture clause. There was no such clause in Ms Kalonga‘s tenancy agreement. There was therefore no right to seek possession during the fixed term. A landlord who wanted to obtain possession of a flexible tenancy during the fixed term needed to have a forfeiture clause in the terms of the tenancy and exercise that power under s.82(3), Housing Act 1985.
The practical effect of this decision is that Croydon LBC – and any other authority which uses fixed term secure tenancies (whether or not flexible tenancies) – cannot obtain possession during the fixed term unless the terms of tenancy contain a forfeiture clause (or possibly a break clause). The evidence before the court was that very few local authorities have such a provision in their terms of tenancy, with the result that such tenants now enjoy exceptionally strong security of tenure during the fixed term.
Denise Phillips was the solicitor representing Ms Kalonga and Justin Bates of Landmark Chambers and Anneli Robins of 4-5 Grays Inn Square were the barristers in the case.