Ending a flexible tenancy during the fixed term

28 Mar 2014

This article considers how a flexible (i.e. fixed term) tenancy, as defined in the Localism Act, granted by a local authority, can be ended during the fixed term.

The rather complex legislative provisions which govern such tenancies mean that:

i) The tenancy agreement must have a provision for re-entry or forfeiture
ii) A possession claim is actually forfeiture proceedings
iii) When an order is made it terminates the fixed term, but a periodic tenancy arises

This appears to mean that any claim to bring to an end a flexible secure tenancy must be brought as a forfeiture claim should and also simultaneously be pleaded as a claim for possession (against the periodic tenancy that arises). For non-rent arrears claims (e.g. ASB, or other breach of tenancy) both a Law of Property Act 1925 s146 notice and a Notice Seeking Possession must be served.

The court has a very wide discretion to grant relief from forfeiture and relief would presumably mean that the fixed term tenancy continued. However, if forfeiture was granted, a periodic tenancy will arise (which is why the possession claim must deal with both).

The common law rules on waiver also apply. This means that once the landlord has elected to forfeit, any action incompatible with the decision to forfeit can amount to the landlord having waived the breach, thus preventing forfeiture.