At the start of a bumpy road, there is a checkpoint. At the checkpoint, there is a sign, which reads: IF YOU HAVE A VEHICLE, YOU CAN PASS. Does this mean that you have to use your vehicle to pass the checkpoint? Or do you only have to bring the vehicle with you to the checkpoint, and then you can pass on foot? Or is not even that required, and you only need to own a vehicle, wherever it is, in order to pass?

This is my extremely clumsy attempt to analogise the questions that were before the United Kingdom Supreme Court in Croydon London Borough Council v Kalonga [2022] UKSC 7. This case was not about road use, but about the circumstances and ways in which a public-sector landlord can terminate a fixed-term secure tenancy before its natural conclusion. Given the number of fixed-term secure tenancies granted by local authorities in England, and in particular the popularity since its introduction in 2012 of a kind of fixed-term tenancy called a flexible tenancy, it is surprising that this issue was uncertain. But now that, as of last week, the Supreme Court has had its say, the position is settled, and if it is not crystal-clear, that is all the more reason for us to take a moment to wrap our heads around it. I have tried to make this post accessible to those with no knowledge of social housing law, so I hope that specialists will forgive any over-explanation or over-simplification and skip over those parts.

The case in the Supreme Court was the second appeal against the decision of the High Court on a preliminary issue. This means that the legal arguments were made on the basis of assumed facts, before a proper trial. The detailed facts or assumed facts of the case are not material but the procedural history is as follows. Ms Kalonga had a five-year flexible tenancy with Croydon Borough Council. Two years into the tenancy, Croydon served a notice on Ms Kalonga seeking to terminate the tenancy and to recover possession of the property. Croydon relied on grounds 1 and 2 of Schedule 2 to the Housing Act 1985, which are rent arrears and anti-social behaviour respectively. Later in the proceedings, Croydon emphasised that it did not rely on forfeiture. Ms Kalonga challenged the possession claim on the basis that the only way in which a flexible tenancy can be terminated early is by way of a forfeiture clause included in the tenancy agreement. A preliminary issue was identified: “How does a landlord under a secure flexible tenancy obtain possession during the fixed term?”. The County Court transferred the trial of this issue to the High Court. The High Court’s decision was appealed to the Court of Appeal and from there to the Supreme Court. There was a second issue, namely whether Ms Kalonga’s tenancy agreement did in fact contain a forfeiture clause. For the sake of focussing on the broader issue, I am not going to discuss this here.

The disagreement is rooted in section 82 of the Housing Act 1985. This section provides for the termination of a fixed-term tenancy such as a flexible tenancy (a “tenancy for a term certain”, in the language of the Act). Any tenancy is primarily a contractual relationship between a landlord and a tenant, giving rise to contractual and proprietary rights as specified in the written agreement. The Housing Acts add to this legal position in the cases of certain kinds of tenancies, usually those granted by public-sector landlords. One important way in which they do this is by providing for security of tenure by specifying the ways in which a tenancy can be brought to an end beyond what is generally possible using a tenancy agreement. This is what section 82 does. The full wording of section 82 is as follows:

82 Security of tenure.

(1) A secure tenancy which is either—
(a) a weekly or other periodic tenancy, or
(b) a tenancy for a term certain but subject to termination by the landlord,
cannot be brought to an end by the landlord except as mentioned in subsection (1A).

(1A) The tenancy may be brought to an end by the landlord—
(a) obtaining—
(i) an order of the court for the possession of the dwelling-house, and
(ii) the execution of the order,
(b) obtaining an order under subsection (3), or
(c) obtaining a demotion order under section 82A.

(2) In the case mentioned in subsection (1A)(a), the tenancy ends when the order is executed.

(3) Where a secure tenancy is a tenancy for a term certain but with a provision for re-entry or forfeiture, the court shall not order possession of the dwelling-house in pursuance of that provision, but in a case where the court would have made such an order it shall instead make an order terminating the tenancy on a date specified in the order and section 86 (periodic tenancy arising on termination of fixed term) shall apply.

(4) Section 146 of the Law of Property Act 1925 (restriction on and relief against forfeiture), except subsection (4) (vesting in under-lessee), and any other enactment or rule of law relating to forfeiture, shall apply in relation to proceedings for an order under subsection (3) of this section as if they were proceedings to enforce a right of re-entry or forfeiture.

This section is not very easy to understand, which is why it took so much litigation to establish what it means. An important distinction to be borne in mind when tackling the section is between the three remedies under subsections (1A)(a), (1A)(b) and (1A)(c). These are the three different ways in which a secure tenancy can be brought to an end.

Subsection (1A)(a) provides for a possession order. This is a procedurally relatively straightforward remedy, which requires the landlord to show that one of the grounds for possession listed in Schedule 2 to the 1985 Act is made out (for example, rent arrears), and, sometimes, that it is reasonable for the court to make a possession order.

Subsection (1A)(b), which refers to subsection (3) provides for cases in which there is a forfeiture clause in the tenancy agreement. A forfeiture clause is basically a written clause that provides for the tenancy to be terminated early if the tenant breaches a term of the agreement. If a landlord seeks to rely on a forfeiture clause to terminate the tenancy because a tenant has breached an obligation under the tenancy, the tenant will have the opportunity to ask the court to grant relief from forfeiture, and not terminate the tenancy. The court will usually do so if the tenant can remedy their breach and undertakes to abide by the terms of the tenancy from then on. Subsection (3) explains that, if the court reaches the end of this process and would ordinarily make a forfeiture order, it will make a different kind of order effectively replacing the fixed-term tenancy with a periodic tenancy.

Subsection (1A)(c) refers to a demotion order, which can be made in cases of anti-social behaviour or unlawful use of the property. A demotion order does not terminate the tenancy, but reduces the tenant’s security of tenure for a period of a year or more, making it much easier for the landlord to recover possession at any time during that period.

The main takeaway is that, for landlords wishing to terminate a tenancy, the subsection (1A)(a) route, leading to a possession order, is generally preferable to the subsection (1A)(b) route, leading to an order in lieu of forfeiture, because the subsection (1A)(a) route is much more likely to lead to the timely vacation of the property by the tenant.  

With this in mind, we can contemplate the first major question in section 82: subsection (1)(b). What is “a tenancy for a term certain but subject to termination by the landlord”? A tenancy for a term certain is a fixed-term tenancy. But is a tenancy only “subject to termination by the landlord” when there is a forfeiture clause in the tenancy, which can provide a route to termination? Or is a tenancy “subject to termination by the landlord” if there is any way in which a landlord can bring it to an end, such as a break clause or an applicable Schedule 2 ground?

Zooming out to view the whole section, including subsection (3), a second question occurs to us. If a tenancy is “subject to termination by the landlord” when there is a forfeiture clause in the tenancy, can it only be terminated by using that clause to obtain an order in lieu of forfeiture? Or, if there is a forfeiture clause, meaning that the tenancy is “subject to termination by the landlord”, can the landlord simply pursue a possession claim?

These questions have high stakes. On the one hand, if a fixed-term tenancy can only be terminated by the landlord by relying on a forfeiture clause in the tenancy agreement, tenants’ security of tenure would be excellent and landlords’ flexibility small, because, first, not all tenancy agreements contain a forfeiture clause, and, second, the forfeiture process is more tenant-friendly than the possession claim process. On the other hand, if a fixed-term tenancy can be terminated by the landlord using the possession claim process as long as there is any provision in the tenancy agreement for early termination, such as a break clause, tenants’ security of tenure would be limited and landlords’ flexibility excellent, since possession could, in appropriate circumstances, be sought on the basis of a no-fault ground in Schedule 2, such as intention to redevelop the property.

What did the courts make of these questions? The judge in the High Court, Tipples J, decided the first question in favour of Ms Kalonga and the second in favour of Croydon ([2020] EWHC 1353 (QB); [2020] 1 WLR 4809). A fixed-term tenancy could only be terminated early if it contained a forfeiture clause: that was what “subject to termination by the landlord” meant. But, if it contained such a clause, the landlord did not need to use it to terminate the tenancy, but could choose to pursue a possession claim. On Croydon’s appeal, the Court of Appeal affirmed Tipples J’s decision on the first question but disagreed on the second question ([2021] EWCA Civ 77; [2021] 2 WLR 1069). For Arnold LJ, with whom King and Asplin LJJ agreed, not only did there need to be a forfeiture clause in the tenancy agreement for a tenancy to be “subject to termination by the landlord”, but the landlord was also obliged to rely on this clause if it sought to terminate the tenancy. In other words, the Court of Appeal held that a fixed-term tenancy could only ever be brought to an end by an order in lieu of forfeiture, and that the regular possession claim process was never an option.

Croydon appealed again to the Supreme Court. Writing for the court, Lord Briggs considered that both of the cases presented by the parties were too extreme. On Croydon’s case, a model tenant would have their contractual and proprietary rights severely diminished by the Housing Act 1985, because possession could be sought in circumstances not contemplated in the tenancy agreement. On Ms Kalonga’s case, what appeared to be menu of options for landlords provided by subsection (1A) was ignored, and fixed-term tenancies could only be terminated by an order in lieu of forfeiture, which did not appear to be a natural meaning of the provisions.

Lord Briggs found what he considered to be the way between Scylla and Charybdis by paying close attention to the statutory language and by being guided by the central purpose of the Housing Acts 1980 and 1985. In his view, this was to add to, and not take away from, tenants’ contractual security of tenure. The words “cannot be brought to an end by the landlord except” in subsection (1) did not add any means of termination, but limit the means of termination from among those already available to the landlord. And when is a means of termination available to the landlord? A tenancy is only “subject to termination by the landlord” when a provision such as a break clause or a forfeiture clause is exercisable, that is, when the tenancy has obtained for the length of time required before a break clause can be used, or when the tenant falls foul of a forfeiture clause by breaching the tenancy agreement. It is not enough for such a clause to be in the tenancy agreement. The conditions must be such that landlord has the right to use it. 

The upshot of this is that, if a tenancy agreement contains a provision for early termination based on anything other than the fault of the tenant, the landlord may rely on that provision to apply for a standard possession order. If the only provision for early termination is a forfeiture clause, requiring the fault of the tenant, the landlord will have to obtain an order in lieu of forfeiture in order to recover possession, giving the tenant the opportunity to apply for relief from forfeiture. If there is no provision at all for early termination, the tenancy cannot be terminated before the end of the term.  

When the Supreme Court’s judgment was handed down last week, this issue had long since ceased to be material to Ms Kalonga’s situation. Her five-year flexible tenancy had expired and she continued to reside at the property under a follow-on periodic tenancy. But this judgment will help local authority landlords and tenants across England. Landlords can have confidence, based on the terms of their tenancy agreements, in which fixed-term secure tenancies are capable of being terminated early for property management purposes and can, for example, plan redevelopments accordingly. Tenants can rely on the terms of their agreements without having to worry about their being undercut by statute. The Supreme Court seems to have found a solution that is fair to all parties. Maybe next time the legislation will be drafted so that the courts are not put in the position of having to make these difficult judgements the best part of forty years after enactment.

What I’ve been watching this week

For violent, multilingual spies; for eerie opening credits sequences; for patterns of allegiance you will need to write down somewhere; for improbable sentimentality about America; for racist portrayals of other countries; for the emotional intensity of Claire Danes and Damian Lewis and the beard of Mandy Patinkin; it has to be Homeland.