On 9 March 2022, the Supreme Court handed down the decision in Croydon LBC v Kalonga (2022) UKSC 7 a link to the judgement is below:

https://www.bailii.org/uk/cases/UKSC/2022/7.html

The case concerned the termination of secure flexible tenancy during its 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 at least five years. At the end of the fixed term the landlords has a mandatory ground for possession under s107D Housing Act 1985. We acted for Ms Kalonga who was the tenant of a property in Croydon under flexible tenancy for a fixed term of five years. The tenancy commenced May 2015. Croydon LBC was her landlord.

Croydon LBC issued possession proceedings during the fixed term for alleged antisocial behaviour and rent arrears. Our client defended the case on the basis that her Tenancy Agreement did not include a forfeiture clause and therefore Croydon LBC could not evict her during the fixed term. Croydon LBC would have to wait until the end of the fixed term to take possession proceedings against her, relying on the mandatory ground for possession. The High Court found for our client and held that the Tenancy Agreement did not include a forfeiture clause and without one, Croydon LBC did not have any right to end the Tenancy Agreement before the fixed term of five years had expired.

Croydon appealed to the Court of Appeal. Our client won again as the Court of Appeal dismissed Croydon’s appeal. Croydon LBC appealed to the Supreme Court.

The Supreme Court held that there are two ways in which a landlord under a fixed term tenancy can recover possession during the fixed term. The first is where the tenancy contains a contractual break clause. The landlord can exercise that clause and then seek possession under the usual statutory grounds for possession in a similar way to that applicable to periodic tenancies (i.e. ground for possession, reasonableness, suspension etc). The second is where the tenancy contains a forfeiture clause. In that case, the Housing Act 1985 has provision for a special form of forfeiture to apply. If the tenancy contains neither type of clause then it cannot be terminated during the fixed term.

On the facts of the case, the claim for possession failed. Although the court found that Croydon LBC’s Tenancy Agreement did contain a forfeiture clause (and so Croydon LBC’s appeal was allowed in part), Croydon LBC had expressly stated that it was not relying on a right of forfeiture and therefore the Supreme Court held that the High Court and Court of Appeal were right to dismiss the possession claim.

The case is of great importance as it is thought there’s around 30,000 fixed term secure tenancies in England. The Supreme Court has set out the position as regards the termination of flexible tenancies during the fixed term. Whether a particular secure tenancy agreement contains a break clause or forfeiture clause remains to be considered on the facts of each case.

Denise Phillips of GT Stewart was the solicitor representing Ms Kalonga and Justin Bates of Landmark Chambers and Anneli Robins of 4-5 Gray’s Inn Square were the barristers instructed in the case.