Croydon London Borough Council v Chipo Kalonga
| Jurisdiction | England & Wales |
| Judge | Lord Justice Arnold,Lady Justice Asplin,Lady Justice King |
| Judgment Date | 27 January 2021 |
| Neutral Citation | [2021] EWCA Civ 77 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2020/0925 |
| Date | 27 January 2021 |
[2021] EWCA Civ 77
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
Tipples J
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice King
Lady Justice Asplin
and
Lord Justice Arnold
Case No: A2/2020/0925
Kelvin Rutledge QC and Riccardo Calzavara (instructed by Croydon London Borough Council Legal Services) for the Appellant
Justin Bates and Anneli Robins (instructed by GT Stewart Solicitors) for the Respondent
Hearing date: 15 December 2020
Approved Judgment
Introduction
The principal issue on this appeal is whether a landlord can terminate a flexible tenancy agreement for a fixed term of five years prior to the expiry of the fixed term if no express provision is made in the tenancy agreement for re-entry or forfeiture (a “forfeiture clause”).
The factual and procedural background
The Respondent (“the Tenant”) was 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 was the Appellant (“the Landlord”).
On 2 August 2017 the Landlord served notice seeking termination of the Tenancy Agreement and recovery of possession of the Property (“the Notice”) on the Tenant. The Notice relied on grounds 1 and 2 of Schedule 2 to the Housing Act 1985. The Notice was in the standard form prescribed by regulation 2(2) of, and Part II of the Schedule to, the Secure Tenancies (Notices) Regulations 1987, SI 1987/755. Accordingly, section 2 on the first page of the Notice stated:
“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. The 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 Act gives additional rights to tenants, as described below.”
The Landlord stated in a covering letter enclosing the Notice:
“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 in the County Court at Central London 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. No claim was made on the ground of forfeiture. Subsequently the Tenant served a Defence and Counterclaim contending, among other things, that the Tenancy Agreement did not include a forfeiture clause, that the Landlord had failed to serve a valid notice under section 146 of the Law of Property Act 1925 and that the claim was defective as a claim for possession of a flexible tenancy during the fixed term. The Landlord served a Reply and Defence to Counterclaim which, among other things, confirmed that the Landlord did not rely upon forfeiture as a ground for possession.
On 9 May 2019 HHJ Bailey directed a trial of the following preliminary 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 that issue to the High Court and stayed the remainder of the claim and the counterclaim pending the determination of the preliminary issue.
On the trial of the preliminary issue Tipples J held, for the reasons given in her judgment dated 2 June 2020 [2020] EWHC 1353 (QB), [2020] 1 WLR 4809, that the Tenancy Agreement did not include a forfeiture clause and that, in the absence of such a clause, the Landlord did not have any right to determine the Tenancy Agreement prior to the expiry of the fixed term. Accordingly, she dismissed the Landlord's claim. By this appeal the Landlord challenges both those conclusions. The Tenant has served a Respondent's notice challenging the judge's conclusion that the Landlord did not need to (i) serve notice under section 146 of the 1925 Act or (ii) bring proceedings for an order under section 82(3) of the 1985 Act.
The Tenancy Agreement
The Tenancy Agreement is a one-page document dated 28 July 2015 entitled “Croydon Council Five Years Flexible Tenancy Agreement” signed by both parties. The terms and conditions contained in the Landlord's “Conditions of Tenancy booklet [2013 edition]” (“the Booklet”) are incorporated into the agreement.
The Tenancy Agreement states:
“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.”
The Booklet begins with four introductory pages numbered 2–5. Page 2 states:
“ Introduction
This booklet contains the terms and obligations of the tenancy agreement. You should read them carefully.
…
About your agreement
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.
…”
Pages 4–5 state:
“ Reasons for seeking possession
Following the [tenancy] review we will take action to end your tenancy and repossess the property if:
You have not kept to any of the conditions of tenancy;
…
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.”
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 the council the right to take your home away”.
The substantive clauses include the following:
“ Clause 1: Rent payment
You will pay the weekly rent, including service charges, water rates/charges and support charges as deemed necessary made by the Council relating to the tenancy (together called the gross rent), and any subsequent alterations to these sums subject to Clause 2.
…
Clause 3: Ending the tenancy
…
Action by us
We may end a secure tenancy by first serving a notice of seeking possession and applying to the court for a possession order. Where the tenancy is no longer secure we will serve a notice to quit giving you four weeks' notice which must end on a Monday. The minimum period of notice of seeking possession varies depending upon the ground(s) on which we are seeking possession. If you, or someone else, remains in occupation after the notice period has expired, we will seek a court order for possession, or use any other lawful means available to repossess the property….
We may end the agreement for any of the reasons set out in the information about your tenancy agreement.
Clause 7: Your responsibilities
Where you or any member of your household or any visitor fails to comply with any part of this Tenancy Agreement, you will be in breach of the agreement.
Clause 10: Grounds upon which we may seek possession
We may seek possession if, following a review of your tenancy, you no longer qualify for housing under the council's allocation scheme, or you break any of the clauses in this agreement, or if any of the grounds in schedule 2 of the Housing Act 1985 as amended by the Housing Act 1996, or for any other ground that is made law and applies in the future, are breached. A summary of the grounds is set out in Schedule 2 at the end of this booklet. The numbers follow the numbering used by the Housing Act 1985.
…
Failure to comply with the clauses in this agreement may also affect our assessment of your suitability as a tenant at the time of reviewing your tenancy and may result in a delay or suspension of any transfer application until you put right the breach.
Clause 25: Antisocial behaviour
We do not tolerate antisocial behaviour and we will investigate all complaints of antisocial behaviour and take all complaints seriously. We will take such action as we deem appropriate in each case, including using such legal action as is detailed in this clause.
…
You are responsible for your own behaviour and the behaviour or those living or lodging with you (including children), and your visitors, in and around the property, communal or public area within the locality of your home.
…
We will ask the court to make an order for possession … if …
Schedule 2
Grounds for possession
1. If you are behind...
To continue reading
Request your trial
-
Croydon London Borough Council v Chipo Kalonga
...[2022] UKSC 7 before Lord Briggs Lady Arden Lord Kitchin Lord Leggatt Lord Stephens Supreme Court Hilary Term On appeal from: [2021] EWCA Civ 77 Appellant Kelvin Rutledge Riccardo Calzavara (Instructed by Croydon Council Legal & Democratic Services) Respondent Justin Bates Anneli Robins (In......
-
R Miss Chipo Kalonga v The London Borough of Croydon
...The High Court judge and the Court of Appeal accepted the argument on behalf of the Claimant (see the Court of Appeal judgment at [2021] EWCA Civ 77; [2021] 2 WLR 1069). The Defendant has been given permission to appeal to the Supreme 2 In the meantime, on 26 May 2020, the fixed term expi......