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Supreme Court to hear appeal by council in dispute over secure flexible tenancies and possession during fixed term

The Supreme Court will this week hear an appeal from a council over whether a landlord can terminate a flexible tenancy agreement prior to the expiry of the fixed term if the tenancy agreement does not expressly provide for re-entry or forfeiture.

The background to the case of Croydon London Borough Council v Kalonga is that the respondent, Miss Kalonga, was the tenant of a property in Croydon under a flexible tenancy for a fixed term of five years from 25 May 2015 to 24 May 2020 (the "Tenancy Agreement"). Croydon Council was her landlord.

On 2 August 2017, Croydon served a notice on Miss Kalonga seeking to terminate the Tenancy Agreement due to rent arrears and anti-social behaviour.

On 29 August 2017, Croydon issued a claim in the County Court at Central London seeking possession of the property. No claim was made on the ground of forfeiture.

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Miss Kalonga served a Defence and Counterclaim, arguing that the Tenancy Agreement did not include a forfeiture clause, Croydon had failed to serve a valid notice under section 146 of the Law of Property Act 1925, and the claim was defective as a claim for possession of a flexible tenancy during the fixed term, she argued.

As a preliminary issue, Mrs Justice Tipples held in Croydon London Borough Council v Kalonga [2020] EWHC 1353 (QB) that the Tenancy Agreement did not include a forfeiture clause and without one, Croydon did not have any right to end the Tenancy Agreement before the fixed term of five years had expired.

Croydon appealed and in Croydon London Borough Council v Kalonga [2021] EWCA Civ 77 the Court of Appeal dismissed its appeal.

The council has appealed to the Supreme Court and a panel comprising Lord Briggs, Lady Arden, Lord Kitchin, Lord Leggatt and Lord Stephens will hear the case on Wednesday (12 January 2022).

UPDATE: Click here to watch the hearing.

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