Not very flexible – Croydon LBC v Kalonga and the tale of the Flexible Tenancy

Appartment building 835817 1920

Croydon LBC v Kalonga [2021] EWCA Civ 77 Arnold, King, Asplin LJJ Section 82(1), Housing Act 1985, provides that a secure tenancy which is either a weekly or other periodic tenancy, or “a tenancy for a term certain but subject to termination by the landlord” cannot be brought to an end except in one of the three methods specified in s.82(1A). Those three methods are: (a) obtaining and executing an order for possession; (b) obtaining an order for demotion of the tenancy; or, (c) in the case of a tenancy for a term certain but with a provision for re-entry or forfeiture, obtaining an order for the termination of the fixed term tenancy and its replacement with a periodic tenancy. 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). It differs from a “normal” fixed term secure tenancy in that, inter alia, at the end of the fixed term, the landlord has a mandatory ground for possession (s.107D). 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 her tenancy was a “tenancy for a term certain” but that it did not contain any provision for termination by the landlord. She therefore contended that none of the three routes for possession identified in s.82(1A) applied during the fixed term and that Croydon LBC would have to wait until the end and rely on s.107D for possession. The High Court found for Ms Kalonga and dismissed the possession claim ([2020] EWHC 1353 (QB); [2020[ HLR 36). The Court of Appeal dismissed an appeal. 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)(c). Croydon LBC did not have a such a clause in its agreement and the claim for possession had to be dismissed. Comment 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. Justin Bates acted for Ms Kalonga in both the High Court and Court of Appeal. He led Anneli Robins (4-5 Gray’s Inn Sq) in both the High Court and Court of Appeal and was instructed by GT Stewart.

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