Ward Hadaway Speed Read: The risk behind flexible tenancies 

Croydon LBC v Kalonga [2020] EWHC 1353 (QB)Tipples J

A flexible tenancy is a type secure tenancy that can be granted by a local authority to its tenants. They must be granted for a minimum fixed term of two years however, at the end of this term, a mandatory ground for possession arises.

Mrs Kalonga was a flexible tenant of Croydon London Borough Council. Her tenancy began in May 2015 and was granted for a fixed term of 5 years. During her tenancy, Croydon LBC became aware of a number of instances of anti-social behaviour committed by Mrs Kalonga and so sought to regain possession of the property prior to the end of the fixed term. The ground relied on was Ground 2 (Sch 2) of the Housing Act 1985, thus relating to her seemingly poor behaviour and the resultant nuisance caused to others.

This action taken by the landlord was contested by Mrs Kalonga on the basis that a flexible tenancy could only be terminated by forfeiture and that there was no forfeiture clause in her lease.

The claim had been issued in the County Court however, due to the high number of properties in the UK let on a flexible tenancy (around 30,000) and the fact that the majority of council’s did not include a forfeiture clause in such leases, the matter was elevated to the High Court.

The High Court found in Mrs Kalonga’s favour and dismissed the possession claim. It agreed that her tenancy could not be terminated in the absence of a forfeiture clause and so possession could not be sought before the end of the fixed term.

The case tells us that any landlord wanting to regain possession of a flexible tenancy before the end of the fixed term must be in a position to rely on forfeiture clause contained within the terms of the relevant tenancy – even if a tenant demonstrates anti-social behaviour. The absence of such a provision therefore awards a tenant with an exceptionally strong security of tenure during their fixed term. This decision will undoubtedly have negative repercussions for many tenancies in the UK.

In light of the above, local authorities should be fastidious in their inclusion of a forfeiture clause in all new flexible tenancies going forward. In some cases, it may be worthwhile exploring the options surrounding the variation of leases to mitigate future risk and look to regain vital control.