A flexible tenancy is a species of secure tenancy which is granted for a fixed term of at least two years (s.107A-D, Housing Act 1985). At the end of the fixed term, the landlord has a mandatory ground for possession (s.107D). During the fixed term, commentators have differed on how the landlord can terminate the tenancy. In Flexible Tenancies and Forfeiture,  Journal of Housing Law 17 (Andrew Dymond), it was suggested that the tenancy needed to include a forfeiture clause and the fixed term needed to be terminated by way of forfeiture (see s.82(3), 1985 Act). By contrast, in In a Fix New Law Journal, 29 June 2012 (Jon Holbrook), it was suggested that a flexible tenancy could be determined in the same manner as a periodic secure tenancy, i.e. by the landlord obtaining and executing an order for possession.
Ms Kalonga was the flexible tenant of Croydon LBC for a fixed term of five years from 25 May 2015. The landlord considered that she had been guilty of anti-social behaviour and sought possession under Ground 2, Sch.2, Housing Act 1985. She contended that a flexible tenancy could only be terminated by forfeiture and that there was no forfeiture clause in her tenancy. 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 trite law 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 the 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.
Justin Bates led Anneli Robins of 4-5 Gray’s Inn Square for Ms Kalonga, instructed by GT Stewart.