Croydon London Borough Council v Miss Chipo Kalonga
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Tipples DBE |
| Judgment Date | 02 June 2020 |
| Neutral Citation | [2020] EWHC 1353 (QB) |
| Docket Number | Case No: QB-2019-004106 |
| Court | Queen's Bench Division |
| Date | 02 June 2020 |
[2020] EWHC 1353 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Tipples
Case No: QB-2019-004106
Mr Riccardo Calzavara (instructed by London Borough of Croydon) for the Claimant (the landlord)
Mr Justin Bates & Ms Anneli Robins (instructed by GT Stewart Solicitors & Advocates) for the Defendant (the tenant)
Hearing date: 8 th April 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
Miss Chipo Kalonga is the tenant of 61 The Crescent, Croydon, Surrey, CR0 2HP (“ the property”) pursuant to a flexible tenancy for a fixed term of five years from 25 May 2015 until 24 May 2020 (“ the tenancy agreement”). The landlord is the claimant, Croydon London Borough Council. In this judgment I shall refer to Miss Kalonga as “ the tenant” and Croydon London Borough Council as “ the landlord”.
On 2 August 2017 the landlord served notice seeking termination of the tenancy agreement and recovery of possession (“ the notice”) on the tenant. The notice relied on grounds 1 and 2 of Schedule 2 to the Housing Act 1985 (“ the 1985 Act”). The notice was in the standard form prescribed by Part II of the Secure Tenancies (Notices) Regulations 1987/755 and, in accordance with the standard form, section 2 on the first page of the notice provided that:
“This notice applies to you if you are a secure tenant under the Housing Act 1985 and if your tenancy is for a fixed term, containing a provision which allows your landlord to bring it to an end before the fixed term expires. This may be because you have got into arrears with your rent or have broken some other condition of the tenancy. This is known as a provision for re-entry or forfeiture. This Act does not remove the need for your landlord to bring an action under such provision, nor does it affect your right to seek relief against re-entry or forfeiture. In other words to ask the Court not to bring the tenancy to an end…”
The landlord's covering letter, provided with the notice, informed the tenant that:
“The attached notice is served without prejudice to [the landlord's] argument that it does not need to terminate your tenancy by exercising a proviso for re-entry or forfeiture. We appreciate that the first bullet point of section 2 suggests otherwise, but [the landlord] is of the opinion that those words in the notice, which was drafted in 1987, are now obsolete in light of the flexible tenancy scheme under the Localism Act 2011 that applies to your tenancy.”
On 29 August 2017 the landlord issued a claim form in the Central London County Court seeking possession of the property against the tenant. The claim for possession was made on grounds 1 and 2 of Schedule 2, namely rent arrears of £703.04 and alleged anti-social behaviour. A number of procedural matters arose in this claim before the tenant's defence and counterclaim was eventually served on 11 December 2018. The landlord's reply and defence to counterclaim was served on 3 January 2019.
The particulars of claim alleged that the appropriate “Notice Seeking Termination” of the tenancy had been served by the landlord on 2 August 2017 (ie the notice). This allegation was denied by the tenant in these terms:
“The conditions of the tenancy do not include a forfeiture proviso. Further and/or alternatively the [landlord] has failed to serve a valid s.146 Law of Property Act 1925 notice. Further and/or alternatively, the [landlord] has waived their right to forfeit and/or their right to rely upon all allegations and/or some allegations by inter alia accepting rent and/or demanding rent … Further and/or alternatively, the claim for possession is defective as a claim for possession of a secure flexible tenancy during the fixed term.”
The landlord's reply made it clear that it did not rely on forfeiture in order to determine the tenancy agreement. Further, no notice has been served under section 146 of the Law of Property Act 1925 in respect of the tenant's alleged anti-social behaviour.
In February 2019 the tenant applied to transfer the claim to the High Court. In May 2019 that application was refused by His Honour Judge Bailey. Instead, HHJ Bailey directed a separate trial of the following issue, namely: “the correct manner in which to determine a secure flexible tenancy during the fixed term (including whether, and if so how, any principles relating to forfeiture apply)”. HHJ Bailey transferred the trial of the issue to the High Court for determination and stayed the remainder of the claim and the counterclaim, pending the determination of the separate trial.
On 4 February 2020 the parties filed an agreed statement of facts and issues. They identified the question for determination as: “How does a landlord under a secure flexible tenancy obtain possession during the fixed term?”.
In answer to this question, the landlord maintains that, in the event of default by the tenant, a flexible tenancy can be determined by a landlord before the end of the fixed term by any of the three ways identified under section 82(1A) of the 1985 Act and, in order to do so, the flexible tenancy does not need to contain a forfeiture clause.
The tenant, on the other hand, maintains that, in the event of default by the tenant, a flexible tenancy can only be determined by the landlord before the end of the fixed term by forfeiture. However, the landlord can only do so if the flexible tenancy contains a proviso for re-entry in the event of breach of covenant. The tenant argues that as there is no such provision in the tenancy agreement then, whether or not she is in default, the landlord is unable to determine the tenancy agreement and obtain an order for possession before the end of the fixed term. The tenant's case is that the claim must be dismissed.
Given the facts of this case, the focus of the argument was on the determination of a flexible tenancy prior to the expiry of the fixed term by forfeiture. It seems to me that a contractual break clause may also provide a landlord with the right to determine a flexible tenancy prior to the expiry of the fixed term. However, such a provision is only relevant for flexible tenancies with a fixed term of more than two years, as the minimum term of a flexible tenancy is not less than two years: section 107A(2)(a) of the 1985 Act. The parties did not address contractual break clauses in their submissions and I do not address them further in this judgment.
The conclusion I have reached is that, in the event of default by the tenant, the landlord cannot determine the flexible tenancy prior to the expiry of the fixed term, unless the flexible tenancy contains a forfeiture clause which enables the landlord to determine the tenancy at an earlier date. In this case the landlord does not rely on forfeiture to determine the tenancy agreement prior to the expiry of the fixed term, and there is no forfeiture clause in the tenancy agreement. This means that, even if the tenant is in default as alleged, the landlord cannot bring the tenancy agreement to an end before the expiry of the fixed term by any of the ways identified in section 82(1A) of the 1985 Act. The claim must therefore be dismissed.
The reference to statutory provisions in this judgment are to the 1985 Act, unless otherwise stated. However, before turning to the legislation I will set out the terms of the tenancy agreement.
The tenancy agreement
Terms and conditions
The tenancy agreement is contained in a one-page document dated 25 July 2015, signed by both parties and entitled “Croydon Council Five Years Flexible Tenancy Agreement”. The terms and conditions in the landlord's “Conditions of Tenancy booklet [2013] Edition” (“ the landlord's booklet”), a 32-page document, are incorporated into this agreement.
The notice at the top of the signed agreement says this:
“By signing this agreement you are confirming that you agree to the terms and conditions of the Flexible Tenancy Agreement, which are set out in the Conditions of Tenancy booklet [2013 Edition]. You should read the booklet carefully to understand your rights and obligations as a Flexible tenant. All terms and conditions are explained in the Conditions of Tenancy. If you have any queries, please contact your Tenancy Officer”.
In the agreed statement of facts and issues the parties have drawn attention to the following provisions in the landlord's booklet:
a. The introduction on page 2 says, amongst other things, “this agreement contains the terms and obligations of the tenancy agreement and you should read them carefully”; “by signing the tenancy agreement, you became a tenant for a fixed term as set out in the tenancy offer letter”; “to comply with the requirements of the Localism Act 2011 we are required to give you at least six months' notice in writing of our decision to terminate your tenancy (with the reason for that decision) and give you information about how to obtain help and advice”.
b. The landlord's reasons for seeking possession are set out on pages 3 and 4. Page 4 then says this: “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.”
c. There are a number of definitions set out on pages 7 and 8. “Possession order” is defined as “an order made by the court giving...
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