![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Croydon London Borough Council v Kalonga [2021] EWCA Civ 77 (27 January 2021) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2021/77.html Cite as: [2021] WLR(D) 63, [2021] EWCA Civ 77, [2021] 2 WLR 1069, [2021] QB 962 |
[New search] [Printable PDF version] [Buy ICLR report: [2021] QB 962] [Buy ICLR report: [2021] 2 WLR 1069] [View ICLR summary: [2021] WLR(D) 63] [Help]
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
Tipples J
Strand, London, WC2A 2LL |
||
B e f o r e :
LADY JUSTICE ASPLIN
and
LORD JUSTICE ARNOLD
____________________
CROYDON LONDON BOROUGH COUNCIL |
Appellant |
|
- and - |
||
CHIPO KALONGA |
Respondent |
____________________
Justin Bates and Anneli Robins (instructed by GT Stewart Solicitors) for the Respondent
Hearing date : 15 December 2020
____________________
Crown Copyright ©
Lord Justice Arnold:
Introduction
The factual and procedural background
"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 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."
The Tenancy Agreement
"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."
"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.
…"
"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."
"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 with your rent or have broken your tenancy conditions in some way.
2.a(i) Nuisance or annoyance to people living, visiting or going about their lawful business near your home."
Secure tenancies: the statutory provisions
"Periodic tenancy following fixed term.
29.(1) Where a secure tenancy … is a tenancy for a term certain and comes to an end by effluxion of time or by an order under section 32(2) below, a periodic tenancy of the same dwelling-house arises by virtue of this section, unless the tenant is granted another secure tenancy …
Security of tenure.
32.(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 by obtaining an order of the court for the possession of the dwelling house or an order under subsection (2) below; and where the landlord obtains an order for the possession of the dwelling-house the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order.
(2) 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 any case where, but for this section, the court would have made such an order it shall instead make an order terminating the secure tenancy on a date specified in the order.
(3) 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 (2) above as if they were proceedings to enforce a right of re-entry or forfeiture."
"Security of tenure.
82.(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.
Demotion because of anti-social behaviour.
82A.(1) This section applies to a secure tenancy if the landlord is–
(a) a local housing authority;
…
(2) The landlord may apply to the county court for a demotion order.
(3) A demotion order has the following effect–
(a) the secure tenancy is terminated with effect from the date specified in the order;
(b) if the tenant remains in occupation of the dwelling-house after that date a demoted tenancy is created with effect from that date;
…
(4) The court must not make a demotion order unless it is satisfied–
(a) that the tenant or a person residing in or visiting the dwelling-house has engaged or has threatened to engage in–
(i) conduct that is capable of causing nuisance or annoyance to some person (who need not be a particular identified person) and that directly or indirectly relates to or affects the landlord's housing management functions, or
…
(b) that it is reasonable to make the order.
(5) Each of the following has effect in respect of a demoted tenancy at the time it is created by virtue of an order under this section as it has effect in relation to the secure tenancy at the time it is terminated by virtue of the order–
(a) the parties to the tenancy;
(b) the period of the tenancy;
(c) the amount of the rent;
(d) the dates on which the rent is payable.
(6) Subsection (5)(b) does not apply if the secure tenancy was for a fixed term and in such a case the demoted tenancy is a weekly periodic tenancy.
…
Proceedings for possession or termination: general notice requirements.
83.(A1) This section applies in relation to proceedings for an order mentioned in section 82(1A) other than—
…
(b) proceedings for possession of a dwelling-house under section 107D (recovery of possession on expiry of flexible tenancy).
(1) The court shall not entertain proceedings to which this section applies unless—
(a) the landlord has served a notice on the tenant complying with the provisions of this section, or
(b) the court considers it just and equitable to dispense with the requirement of such a notice.
(2) A notice under this section shall—
(a) be in a form prescribed by regulations made by the Secretary of State,
(b) specify the ground on which the court will be asked to make the order, and
(c) give particulars of that ground.
…
(6) Where a notice under this section is served with respect to a secure tenancy for a term certain, it has effect also with respect to any periodic tenancy arising on the termination of that tenancy by virtue of section 86; and subsections (3) to (5) of this section do not apply to the notice.
…
Grounds and orders for possession.
84.(1) The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2 or … section 107D (recovery of possession on expiry of flexible tenancy).
(2) The court shall not make an order for possession –
(a) on the grounds set out in Part I of Schedule 2 (grounds 1 to 8), unless it considers it reasonable to make the order,
…
Periodic tenancy arising on termination of fixed term.
86.(1) Where a secure tenancy ('the first tenancy') is a tenancy for a term certain and comes to an end—
(a) by effluxion of time, or
(b) by an order of the court under section 82(3) (termination in pursuance of provision for re-entry or forfeiture),
a periodic tenancy of the same dwelling-house arises by virtue of this section, unless the tenant is granted another secure tenancy of the same dwelling-house (whether a tenancy for a term certain or a periodic tenancy) to begin on the coming to an end of the first tenancy.
(2) Where a periodic tenancy arises by virtue of this section—
(a) the periods of the tenancy are the same as those for which rent was last payable under the first tenancy; and
(b) the parties are the terms of the tenancy are the same as those of the first tenancy at the end of it;
Except that the terms are confined to those which are compatible with a periodic tenancy and do not include any provision for re-entry or forfeiture."
Flexible tenancies: the statutory provisions
"The other express terms of the flexible tenancy are those set out in the notice, so far as those terms are compatible with the statutory provisions relating to flexible tenancies; and in this subsection 'statutory provision' means any provision made by or under an Act."
"(8) This section has effect notwithstanding that, on the coming to an end of the flexible tenancy, a periodic tenancy arises by virtue of section 86.
(9) Where a court makes an order for possession of a dwelling-house by virtue of this section, any periodic tenancy arising by virtue of section 86 on the coming to an end of the flexible tenancy comes to an end (without further notice and regardless of the period) in accordance with section 82(2).
(10) This section is without prejudice to any right of the landlord under a flexible tenancy to recover possession of the dwelling-house let on the tenancy in accordance with this Part."
Termination by the landlord
Appeal ground 1
"The 1980 Act … preserved the contractual tenancy. It merely added statutory incidents to that tenancy which overrode some of the contractual terms. These overriding provisions include the provisions which prevent it from being terminated except by an order of the court on the statutory grounds."
"32. Since the secure tenancy granted in the present case was a periodic tenancy, the argument was naturally directed to the question whether a landlord can rescind such a tenancy at common law. Several days after the hearing of the appeal, Mr Arden sent further written submissions to the court raising a new point. He draws attention to the fact that section 82(1)(b) refers to 'a tenancy for a term certain but subject to termination by the landlord' and provides that such a tenancy too 'cannot be brought to an end by the landlord except by obtaining an order mentioned in subsection (1A)'. Subsection (1A)(b) refers to 'an order under subsection (3)' …
33. The effect of section 82(3)(4) is that, if there is a provision for re-entry or forfeiture in a fixed-term secure tenancy, the court may not order possession pursuant to it, but instead (and subject to relief from forfeiture) may make an order for termination on a date specified in the order.
34. Mr Arden submits that fixed-term tenancies do not contain provision for re-entry or forfeiture for misrepresentation. Accordingly, unless the right to obtain rescission is available, it is not possible to secure the eviction of a tenant who has acquired a fixed-term tenancy by misrepresentation before the expiry of the term. After the expiry of the term, a periodic tenancy comes into being (section 86): termination of that tenancy is by the same means and on the same grounds as any other periodic secure tenancy.
35. Mr Arden submits that section 82(3)(4) provides strong support for the argument that sections 82 and 84 were not intended to exclude rescission. I do not agree. First, there is no reason why a fixed-term tenancy should not contain a provision for re-entry or forfeiture for misrepresentation. Secondly, even if the 1985 Act does not permit a landlord, before the expiry of a fixed-term secure tenancy, to obtain possession on the grounds that the tenancy was induced by a tenant's fraudulent misrepresentation, this is an insufficient reason for failing to give effect to the plain meaning of section 82(3)(4). For the reasons already given, the statutory scheme clearly excludes the common law right of rescission."
"56. My reading of these provisions is that a secure tenancy which is not a periodic tenancy is treated as granted for a term certain even if it can be terminated by the landlord during the term. This is made clear by the opening words of section 82(3).
…
59. A tenancy granted for a fixed term of, say, two years is limited by grant to a term certain of that duration notwithstanding that it may be brought to any end sooner by forfeiture or by the operation of a break clause. …."
"No secure tenancy can be brought to an end save by court order. A weekly or other periodic tenancy can be terminated, and possession obtained, simply by the landlord following the procedures for obtaining a possession order. A fixed term tenancy subject to a proviso for re-entry or forfeiture must be determined by a termination order. Where such order is granted, a periodic tenancy will automatically come into effect, unless, at the same time a possession order is also sought. The tenancy, thus terminated, determines on the date specified in the order … "
"Subs. (1)
This subsection sets out the fundamental proposition. Whether a periodic tenancy … or whether a term certain (but subject to termination by the landlord) a secure tenancy cannot be brought to an end by the landlord, save by obtaining an order for possession from the court, and, in the case of term certain, an order determining the term certain (under subs. (2)). Even if a term certain is brought to an end, then unless the court orders both termination and possession to take effect on the same date, a periodic tenancy will follow: sub.(3).
….
Sub. (3)
This section deals with terms certain (see also subs. (4)). If there is a proviso for re-entry for forfeiture, the court is not to order possession in consequence of an upheld claim to have re-entered or forfeited, but is instead to make an order determining the term certain. In such circumstances, and unless the court contemporaneously orders the tenant to give up possession, the term certain will be followed by a periodic tenancy. In effect, the tenant will have lost the security of his fixed term …, and will thereafter enjoy no more than the same security as that enjoyed by a periodic tenant."
Respondent's notice
Appeal ground 2
"… a right to determine a lease by a landlord is a right of forfeiture if (a) when exercised, it operates to bring the lease to an end earlier than it would 'naturally' terminate; and (b) it is exercisable in the event of some default by the tenant.
The reference to 'natural' termination in this definition means in the case of a lease for a fixed term, the contractual expiry date …"
"By the common law, when a tenant commits a breach of covenant and the lease contains a proviso for forfeiture, the landlord at his option may either waive the breach or determine the lease. In order to exercise his option to determine the lease the landlord must either re-enter the premises in conformity with the provision or must issue and serve a writ claiming possession. The bringing of an action to recover possession is equivalent to an entry for the forfeiture."
Conclusion
Lady Justice Asplin:
Lady Justice King: