Croydon London Borough Council v Kalonga

A landlord cannot determine a secure flexible tenancy during its fixed term unless the tenancy gives the landlord a right to determine it earlier. In cases of tenant default, that normally requires an express forfeiture clause or other contractual power, properly included in the flexible-tenancy notice. Sections 82(1)(b) and 82(1A) of the Housing Act 1985 do not themselves create a general power to terminate every fixed-term flexible tenancy. Where no such contractual power exists, the landlord must wait until expiry of the fixed term before seeking possession under section 107D. A notice seeking possession and a possession claim are not, without more, an exercise of a right to determine the fixed term.

The claimant local authority granted the defendant a five-year flexible tenancy from 25 May 2015. It later served a notice seeking possession based on rent arrears and alleged anti-social behaviour, and issued possession proceedings.

The county court transferred for separate determination the legal issue of how a landlord may obtain possession during the fixed term of a secure flexible tenancy. The tenancy agreement incorporated the landlord’s conditions booklet, but contained no express forfeiture clause. The landlord argued that section 82(1A) of the Housing Act 1985 permitted possession by any of its specified routes. The tenant argued that early termination required forfeiture and an agreed right of re-entry.

1. Claim dismissed. The tenancy agreement did not give the landlord a right to determine the five-year tenancy before its contractual expiry. The counterclaim was to be remitted to the county court for directions.
2. A fixed-term secure tenancy falls within section 82(1)(b) only if it is subject to termination by the landlord before expiry of the fixed term. A fixed term remains a term certain even though it may be terminable earlier by forfeiture or a break clause.
3. The provisions relied on in the landlord’s conditions booklet referred to eviction, notices seeking possession and possession orders. They did not state that, upon default, the landlord could determine the tenancy before the fixed term ended. They therefore did not amount to a forfeiture clause.
4. The same principle applies to flexible tenancies. Under section 107A(5), any contractual power to determine the tenancy must be included among the express terms notified to the tenant. If there is no forfeiture clause or other early-termination power, section 82(1A) cannot be used to end the tenancy during the fixed term, irrespective of breach.
5. If a flexible tenancy does contain a forfeiture clause, the landlord may use any appropriate route in section 82(1A), including obtaining and executing a possession order under section 82(1A)(a). Proceedings under section 82(3) are not the exclusive route, although section 82(4) applies forfeiture law where that route is used.
6. Artesian Residential Developments Ltd v Beck (2000) QB 541 did not assist the landlord. The tenancy in that case itself contained a right of re-entry, and the statutory scheme under the Housing Act 1988 differed from the scheme under the 1985 Act.

The judgment records that the possession claim was issued in the Central London County Court. In May 2019, His Honour Judge Bailey directed a separate trial of the legal issue and transferred that issue to the High Court, staying the remainder of the claim and counterclaim. The High Court dismissed the landlord’s claim and directed that the counterclaim be remitted to the county court for directions.