Capacity and ending a tenancy

If someone lacks mental capacity, there can be difficulties when it comes to the management of a tenancy, writes Amy Tagoe.

The starting position is that if someone lacks mental capacity, they cannot enter into a tenancy agreement, and this is the same when it comes to ending a tenancy or assigning a tenancy.

The recent case of Dudley Metropolitan Borough Council v Mailley [2023] EWCA Civ 1246 EWHC 2328 (QB) concerned a situation where the tenant started to reside in a nursing home, and it came to the point where she no longer had any realistic prospect of returning to her property.  She therefore ceased to occupy the Property as her only or principal home. A Notice to Quit was served on the tenant and possession proceedings were commenced to regain possession of the property from the remaining occupier, the tenant’s daughter. After the issue of proceedings, the tenant sadly passed away. The Court of Appeal held that the daughter could not succeed the tenancy because the tenant had lost her security of tenure by failing to occupy the Property as her only or principal home and the tenancy had been ended by the Notice to Quit. It would have been different if the tenant was still living at the Property with her daughter when she died.

This case is important to social housing providers. One of the key points from this case is that it can be argued that a landlord is able to serve and rely on a Notice to Quit to end the tenancy, even when the tenant lacks mental capacity, as long as the tenant has ceased to occupy the Property as their only or principal home.

So, what can a social landlord do in these circumstances to regain possession of a property when someone is unable to return to the property and lacks capacity to make the decision to end the tenancy?

The starting point would be to look at whether anyone has legal authority to make the decision on behalf of the tenant to end the tenancy. For example, is there a deputy appointed by the Court of Protection or does someone have Power of Attorney?

If there is no one able to end the tenancy on behalf of the tenant, then you could make an application to the Office of the Public Guardian, which is part of the Court of Protection, for an order to end the tenancy. The application will need to be supported by the capacity assessment and a best interest’s assessment. Practically, this is usually not a viable option for a social landlord as they probably don’t have the evidence to support the application.

In the alternative, the social landlord could serve a Notice to Quit at the Property and provide a copy to the care home or anyone representing the tenant.  Once the NTQ expires the account should be put into a mesne profit account. If there was any doubt or concern that the tenant may not have lost her security of tenure, you could also serve a Notice Seeking Possession without prejudice to the Notice to Quit.

If possession proceedings then become necessary, it is likely there will be a capacity assessment and a litigation friend may need to be appointed before the court can take any further steps in the litigation. Lack of capacity would not mean that a social landlord would not get a possession order, but it will cause delay.

Before taking any steps in relation to ending a tenancy you must always consider your duties pursuant to Equality Act 2010 and when capacity is questionable, it is vital that a robust written Equality Act Assessment is undertaken.

Amy Tagoe is a Senior Associate Solicitor and Head of Housing Management at MSB Solicitors.