You don’t need it, but you have to use it

27 Jan 2021


Croydon LBC v Kalonga [2021] EWCA Civ 77

Ms Kalonga was the flexible tenant of property let to her by Croydon. She was served notice on the basis of rent arrears and alleged antisocial behaviour. The possession claim that followed was defended on the basis that it was only possible to determine any fixed-term secure tenancy, including a flexible tenancy, by terminating it in accordance with the forfeiture-like procedure in s.82(3) Housing Act 1985.

The matter was transferred to the High Court; a note of the judgment below is here. In short, the High Court held that a fixed-term tenancy was “subject to termination by the landlord” only if it contained a forfeiture clause, but that the landlord did not then have to recover possession through the forfeiture-like route. Put another way: “You need it, but you don’t have to use it”. The effect of that judgment was that landlords who had a forfeiture clause (and possibly a break clause) could recover possession in the “normal” way.

Croydon appealed to the Court of Appeal; Ms Kalonga cross-appealed. The Court of Appeal held that the words “subject to termination by the landlord” were prima facie apt to cover any lawful means by which the landlord could bring the tenancy to an end as a matter of contract: [53]. However, in the context of the statutory scheme, it was necessary to have a forfeiture clause: [61]. It then went on to hold that the “normal” route to possession is only available for periodic tenancies, and that a fixed-term tenancy could only be brought to an end by termination through the forfeiture-like procedure in s.82(3): [60]. This was said not to affect the ability to demote such tenancies: [59].

It follows that local authorities whose tenancies do not contain a forfeiture clause (even if they do have a break clause) will not be able to bring the tenancy to an end before its natural expiry; those authorities whose tenancies do have a forfeiture clause will be required to pursue the forfeiture-like route, rather than bringing “normal” proceedings for possession.

Kelvin Rutledge QC and Riccardo Calzavara, instructed by Jenny Fraser-Browne, appeared for Croydon LBC.