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

02 Jun 2020


The High Court has today in the case of Croydon LBC v Kalonga [2020] EWHC 1353 (QB) determined a question that has perplexed practitioners and officers alike for many years: How does a local authority determine a fixed-term (including flexible) secure tenancy during its fixed term? The answer is not quite as expected.

Ms Kalonga was granted a flexible tenancy of the property. During the fixed term Croydon served notice on the basis of rent arrears and alleged antisocial behaviour. It then brought a “normal” claim for possession in the County Court under s.82(1A)(a) Housing Act 1985, which claim was defended on the basis that it was only possible to determine a flexible tenancy during its fixed term by way of forfeiture. Because of its general importance, the question was transferred to the High Court for determination, with the remainder of the proceedings being stayed in the County Court for another day.

The Judge held that it was necessary to have a forfeiture clause, which Croydon did not have: [49]. But she then held that it is not necessary actually to use that forfeiture clause to recover possession and, instead, the landlord is entitled to elect any of the three options in s.82(1A).

Local authorities whose tenancies contain a forfeiture clause (and/or possibly a break clause: [12]) will be pleased that it is now established that they are able to recover possession in the “normal” way. Those that do not are, by this judgment, limited to awaiting the end of the fixed term in order to recover possession. Permission to appeal to the Court of Appeal has been sought.

Riccardo Calzavara, instructed by Jenny Fraser-Browne, appeared for Croydon LBC.