Landlord and tenant – Flexible tenancy – Anti-social behaviour – Claimant landlord seeking possession of property against defendant tenant holding flexible tenancy for fixed term of five years – Whether tenancy agreement including forfeiture clause – Whether tenancy falling within section 82(1)(b) of Housing Act 1985 – Whether flexible tenant determinable before end of fixed term – Claim dismissed
The defendant was the tenant of 61 The Crescent, Croydon, Surrey pursuant to a flexible tenancy for a fixed term of five years from 2015 until 2020. Under the agreement the claimant landlord could end the secure tenancy by serving notice seeking possession and applying to the court for a possession order. The claimant was also entitled to seek possession if the defendant broke any of the clauses of the agreement or for breach of any of the grounds in schedule 2 of the Housing Act 1985. The terms and conditions in the claimant’s conditions of tenancy booklet were incorporated into the agreement. It stated, amongst other things, that possession of the property would be sought against tenants who broke the terms of the agreement.
In 2017, the claimant served notice on the defendant seeking to terminate the tenancy and recover of possession of the property on the grounds of rent arrears and anti-social behaviour. It then brought proceedings for possession in the county court under section 82(1A)(a) of the 1985 Act.
The claimant maintained that, in the event of default by the tenant, a flexible tenancy could be determined by a landlord before the end of the fixed term under section 82(1A) and the flexible tenancy did not need to contain a forfeiture clause.
The defendant considered that, in the event of default, a flexible tenancy could only be determined by the claimant before the end of the fixed term by forfeiture if it contained a proviso for re-entry; as there was no such provision in her tenancy agreement, the claimant was unable to determine the tenancy and obtain a possession order before the end of the fixed term.
Held: The claim was dismissed.
(1) There was no proviso for re-entry in the tenancy agreement. The terms which explained that the landlord might seek possession under the grounds set out in schedule 2 of the 1985 Act did not give the landlord a right to re-enter the property nor did they amount to a right to forfeit the tenancy agreement; any ambiguity should be construed against the landlord. It was fundamental that a forfeiture provision should bring the lease to an end earlier than the “natural” termination date. The provisions relied on by the claimant did not meet that fundamental requirement. The service of a notice seeking possession or the application to the court for a possession order was not the same thing as the exercise by a landlord of its right to determine the tenancy agreement before the end of the fixed term in the event of default by the tenant. The terms and conditions in the landlord’s booklet did not contain any right for the landlord to forfeit the tenancy agreement in the event of breach by the tenant: Clays Lane Housing Co-operative Ltd v Patrick (1984) 49 P & CR 72 followed.
(2) A secure tenancy under section 82(1)(b) was “a tenancy for a term certain but subject to termination by the landlord” which might be brought to an end by the landlord in accordance with section 82(1A). A flexible tenancy was a “species of secure tenancy” with a fixed term which was capable of falling within the scope of section 82(1)(b) provided it was “subject to termination by the landlord”. Ordinarily a tenancy granted for a fixed term, such as five years, could be brought to an end sooner by forfeiture or the operation of a break clause. However, if the landlord did not have any right to forfeit the lease or to serve a break notice, the tenancy would end when the fixed term expired. In those circumstances the landlord would not have any right to determine the lease at an earlier date. If the tenant fell behind with the rent, the landlord’s remedy would be to sue the tenant for the rent. He would not be able to forfeit the lease for breach of covenant. If the landlord considered that the tenant was in breach of the terms of the tenancy as a result of anti-social behaviour, his remedy was likely to be a claim for an injunction against the tenant. If the landlord did not have any right to determine the fixed term at any earlier date, then the fixed term tenancy did not fall within the ambit of section 82(1)(b), and the tenancy could not be brought to an end under section 82(1A). As the flexible tenancy was a type of secure fixed term tenancy, the position was precisely the same in relation to flexible tenancies.
(3) If a landlord wanted to determine a flexible tenancy before the end of the fixed term in the event of breach by the tenant, he had to ensure that he had the right to forfeit the flexible tenancy in such circumstances. That term had to be set out as an express term of the flexible tenancy in the written notice served on the tenant under section 107A(5). The inclusion of a forfeiture clause in the flexible tenancy meant that, in the event of default by the tenant, the landlord might seek to bring the flexible tenancy to an end before the expiry of the fixed term by any of the ways identified under section 82(1A). His right to do so was preserved by section 107D(10). In the present case, if the tenancy agreement had included a forfeiture clause, it would have been within section 82(1)(b) and the landlord would have been entitled to bring it to an end by obtaining an order of the court for possession of the property and execution of the order under section 82(1A)(a).
(4) Accordingly, the claimant did not have any right to determine the tenancy agreement prior to the expiry of the fixed term. The tenancy agreement did not fall within the ambit of section 82(1)(b) and could not therefore be determined under section 82(1A). The claimant was only entitled to seek possession of the property under section 107D at the end of the fixed five-year term.
Riccardo Calzavara (instructed by Croydon London Borough Council) appeared for the claimant; Justin Bates and Anneli Robins (instructed by GT Stewart Solicitors & Advocates) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Croydon London Borough Council v Kalonga
