Thursday, November 22, 2007

Tenancy agreement terms causing problems for local authority

A friend of mine who sits as a Deputy District Judge told me of an interesting case recently. Apparently a local authority tenant had moved out of his rented property, thereby losing his security of tenure and making his tenancy a common law one. The landlords had therefore served a notice to quit (as this is the appropriate notice for common law tenancies) and sought possession of the property.

However in the tenancy agreement there was a clause saying that the tenant could only be evicted after service of a notice of possession as provided under the provisions of the Housing Act 1985. This is the notice which is normally served for secure tenancies but which had not been served in this case as the tenancy was no longer secure. My friend concluded therefore that as no such notice had been served, he was not able to make an order for possession.

His view was that there is no reason why a landlord should not enlarge the tenants security of tenure under the terms of the tenancy agreement, and that if the landlord does this, it should be binding upon him.

In the same way, in the case of Welsh -v- Greenwich London Borough Council, wording in the tenancy agreement was held to enlarge the landlords repairing obligations.

The moral being that local authorities should be more careful about the clauses included in their tenancy agreements. And that they should comply properly with the provisions of their tenancy agreements once these have been issued. And perhaps most importantly of all, they should ensure that their tenancy agreements are drafted by experienced housing lawyers and reviewed regularly.

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5 comments:

Nearly Legal said...

Very interesting story - I'll be commenting and linking on Nearly Legal shortly. I can only presume that the Council had pleaded breach of tenancy condition rather rather relying on the loss of secure tenancy by statute (HA 1985), as no tenancy agreement can trump statute. More detail to follow on NL...

Tessa said...

I have a feeling the DJ adjourned the hearing for a longer appointment to deal with the preliminary point, as he did not feel he could make the order in the 5 minute list.

He did not reserve it to himself however, so we may never know how it went in the end!

Nearly Legal said...

Ah. Oops. I've just posted a whole set of reasons why dismissing the claim was probably wrong at
http://nearlylegal.co.uk/blog/2007/11/extending-security-by-tenancy-agreement/

I'd better add a new intro.

J said...

There is no doubt that a landlord can, by contract prevent himself from relying on statutory grounds for possession (Pollards Hill HA v Marsh [2001] EWCA Civ 199) but, of course, that isn’t quite the case here.

In this case, presuming that the “tenant” has parted with possession then, by operation of law, the secure tenancy has come to and end and cannot be revived. The terms of the tenancy agreement were referable to the secure tenancy and, one assumes, must also be taken to have fallen away.

That being so, I can’t see why the NTQ won’t be accepted. Lets see what happens!

DRW said...

Ah but ... just because the tenant has moved out, it doesn't mean the tenancy has ended. It's the same tenancy, with the same terms therefore, but just no longer secure.

Maybe the council is contractually obliged to serve NSP before ending the tenancy with NTQ.