Flexible Tenancies

June 4th, 2020

Secure tenancies granted by local housing authorities are either the familiar periodic tenancies or tenancies for a fixed term. Croydon LBC v Kalonga (2020) EWHC 1353(QB) concerns a flexible secure tenancy granted by the Council for a fixed term of 5 years.

Flexible tenancies were introduced by Part 7 of the Localism Act 2011 (LA 2011). A flexible tenancy is a secure tenancy granted by a local authority which has notified the tenant in writing prior to entering into the tenancy that it would be flexible and for a fixed term of not less than 2 years.

The terms of a flexible tenancy can, as with any fixed term tenancy, include a forfeiture clause. The problem for Croydon was that it’s flexible tenancy did not include a forfeiture clause.

The Judge holds that if the flexible tenancy does not contain any right of forfeiture, then, irrespective of any breach committed by the tenant, the landlord will be unable to determine the tenancy until after the expiry of the fixed term.

Therefore, if a landlord wants to be able to determine a flexible tenancy before the expiry of the fixed term in the event of breach by the tenant, it must ensure that it has the right to forfeit the tenancy in such circumstances. This term should be set out as an express term of the flexible tenancy in the written notice served on the tenant under Section 107A(5) of the Housing Act 1985, added by LA 2011.

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