Housing Solicitors

In a recent possession case between the claimant, Croydon Council, and the defendant, Ms Kalonga, the Supreme Court considered the authority’s attempt to terminate the defendant’s fixed term flexible tenancy without relying on forfeiture as a ground of possession.

This possession claim was previously dismissed by the Court of Appeal and then appealed to the Supreme Court. The Supreme Court scrutinised and assessed this unique and fascinating claim.

The facts of this case (Croydon London Borough Council v Kalonga (2022) UKSC 7) highlight the importance of incorporating operative forfeiture clauses into tenancy agreements to avoid possession cases failing. Its complexity arises at the root of the issue: the tenancy agreement itself. Ms Kalonga had a fixed term flexible tenancy. Generally speaking, this type of agreement operates as a usual ‘secure tenancy’(which is more commonly used by local councils) with the exception that it only lasts for a fixed period of time and the council can decide not to offer another tenancy once the fixed term comes to an end.

The flexible tenancy can be ended during the fixed term by both terminating the fixed term by way of forfeiture and claiming possession on the periodic tenancy that automatically begins as a result of this. If there is no forfeiture clause in the tenancy agreement then it is arguable whether the tenancy can, therefore, be ended during the fixed term. This was the question that the Supreme Court deliberated in a hearing on the January 12, 2022.

Lord Brigg’s judgment (and agreed by the other four sitting Supreme Court Justices) came to the conclusion that Croydon Council had not used either of the existing two ways in which a fixed term secure tenancy can be ended. The first being a break clause, although, there was no break clause in Ms Kalonga’s tenancy, removing this as an option. The second being a forfeiture claim to terminate the fixed tenancy for which there needed to be a forfeiture clause. As a periodic tenancy automatically arises, a claim for possession on statutory grounds is also needed simultaneously.

Focusing more sharply on the forfeiture element of case, the forfeiture clause is defined in the case of Clays Lane Housing Co-operative Ltd v Patrick (1984) 17 HLR 188 in which the landlord has the right of pursuing forfeiture if the clause:

a) when exercised, operates to bring the lease to an end earlier than it would ‘naturally’ terminate
b) it is exercisable in the event of some default by the tenant

The tenancy agreement provided by Croydon Council expresses that they will take action to repossess the property if “you have not kept any of the conditions of the tenancy” adding to this that, “we may also take eviction action at any time if one or more of the grounds for possession set out in Schedule 2 of these conditions apply”. Schedule 2 of the Landlord and Tenant Act 1985, to which this statement refers, is summarised briefly as grounds for possession for rent arrears and anti-social behaviour. Ms Kalonga’s defence was not based on the possession grounds but rather the lack of a forfeiture clause in the tenancy agreement and that Croydon Council had not relied on forfeiture to terminate the tenancy.

The words “at any time” in the above extract from the Tenancy Agreement were of crucial importance as Lord Brigg determined they “fall squarely within the forfeiture test in the Clays Lane case as a matter of substance” (the Clays Lane case test is as above). However, despite the court deciding that the forfeiture clause was operative, it was already expressed by Croydon Council that they were not relying on forfeiture during these proceedings.

In light of this judgment on possession and forfeiture in fixed term tenancies, local councils will no doubt be scrambling to scrutinise and revise their tenancy agreements should they ever wish to seek possession of their properties in future. This further clarifies the importance of meticulous procedural and statutory compliance for local authorities in their endeavours to seek possession.



About the author: Daisy Tremlett is a dedicated caseworker in Duncan Lewis’ City of London based housing team who specialises in homelessness, disrepair, suitability review and harassment injunction and unlawful eviction cases. If you are affected by any of the issues raised in this article or are a tenant with a possession claim against you, please contact her for advice via email at daisyt@duncanlewis.com or telephone on 020 3114 1328.