The Court of Appeal in Hajan v Mayor and Burgesses of the London Borough of Brent (2024) confirms landlords may amend claims to rely on the mandatory ground of possession in the course of ongoing proceedings.
In 2010, Mr Hajan was granted a secure tenancy by London Borough of Brent (LBB).
In September 2022, he was found guilty of criminal damage and sentenced by the Crown Court.
In November 2022, LBB served a notice seeking possession pursuant to s83 of the Housing Act 1985. This notice relies on discretionary grounds which means the court will only grant possession if it considers it reasonable to do so. In December 2022, LBB issued proceedings for possession.
In April 2023, LBB received the certificate confirming Mr Hajan's conviction and so served a further notice pursuant to s83ZA of the Housing Act 1985 seeking this time to rely on the mandatory ground for possession, rather than the discretionary grounds under the previous notice. The notice under s83ZA confirmed that proceedings would not commence until after 5 June 2023.
On 6 June 2023, LBB applied to amend their existing proceedings to rely on the mandatory ground rather than issuing fresh possession proceedings. LBB's application was successful, but Mr Hajan appealed.
Mr Hajan argued in the Court of Appeal that LBB could not rely on the mandatory ground because the proceedings were not begun after expiry of the s83ZA notice as required by the statute.
LBB argued that the wording of 'proceedings' and 'begun' should be interpreted to include when a landlord makes an application to amend.
The Court held that the purpose of s83ZA was to: 1) inform the tenant of a landlord's decision to seek possession under the mandatory ground and to give the reasons; 2) give the tenant a fair opportunity to request a review of that decision; 3) to ensure that landlords act promptly and do not subject tenants to proceedings based on a stale conviction. The Court was content that LBB's actions in this case were consistent with these purposes.
The Court also felt that the tenant's strict interpretation of the statute would be wasteful of costs and court time and result in unnecessary duplication of effort, i.e. by requiring two sets of proceedings.
The Court therefore agreed with LBB's purposive interpretation of the wording in s83ZA and found that a landlord may amend existing proceedings to rely on the mandatory ground and need not issue fresh proceedings.
The Court at the same time heard the appeal of Kerr v Poplar HARCA and found that a landlord was entitled to vary a conditional (or suspended) possession order made on a discretionary ground by replacing it with an unconditional order on a mandatory ground.
The Court of Appeal has taken a common-sense approach to the procedures for landlords seeking to rely on mandatory grounds for possession when proceedings have already been started under discretionary grounds.
