Switaj -v- McClenaghan [2024] EWCA Civ 1457
Sasha Charles of Landlord Advice UK and Regency Solicitors acted for the landlord in this case alongside Mr Khan (solicitor) and was instrumental in achieving what has now become a landmark Court of Appeal decision in favour of landlords.
The judgment provides critical clarification on the effect of pre-Tenant Fees Act 2019 (“TFA”) payments and the validity of section 21 notices, offering long-awaited certainty across the private rented sector. Read the Switaj -v- McClenaghan judgement here.
Background
The Court of Appeal considered whether fees paid by a tenant before the TFA came into force could later invalidate a landlord’s section 21 notice under the Housing Act 1988.
The Appellant, Ms Switaj, first rented a flat in Holloway in April 2018 on a 12-month assured shorthold tenancy (“Original AST”). Along with rent and a deposit, she paid two additional sums:
- a £120 + VAT admin fee for preparing renewal documents, and
- an unquantified check-out fee.
These fees (“the Original Fees”) were paid to the landlord’s agents in March and April 2018.
After the TFA came into force, the parties entered into further ASTs in 2020 and 2021. These later agreements were deliberately drafted to comply with the TFA and did not require payment of the earlier fees.
In June 2023, the landlord served a section 21 notice and issued possession proceedings. The tenant argued that because the Original Fees were prohibited under the TFA, the notice was invalid.
First-Instance Decision
Relying on Superstrike Ltd v Rodrigues [2013] EWCA Civ 669, the tenant argued that the obligation to pay the fees under the Original AST carried forward into the later tenancies.
District Judge Redpath-Stevens rejected that defence, holding that the later agreements did not require the original fees and therefore there was no breach of the TFA.
Issues Before the Court of Appeal
It was accepted that the Original Fees would be prohibited if required after 1 June 2019.
The Court of Appeal considered:
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Whether Superstrike applied by analogy; and
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Whether the landlord’s retention of the Original Fees could itself amount to a “requirement” under the later tenancies, thereby contravening the TFA and invalidating the section 21 notice.
Court of Appeal Judgment — A Landmark Clarification
1. Distinguishing Superstrike
Lewison LJ held that although a payment may in some cases be “required” for TFA purposes even without contractual wording, mere silence does not create a requirement.
The landlord’s retention of the Original Fees after the TFA came into force did not amount to a demand for payment under the later ASTs.
2. Whether Retention Was a “Requirement”
The tenant advanced an innovative argument that the landlord’s retention of the check-out fee implied a continuing requirement.
The Court firmly rejected this:
- The fee had been required and paid before the TFA.
- It was never required again.
- No factual basis existed for inferring a continuing requirement.
Lewison LJ emphasised that:
- s.1(6) TFA is contract-focused, and
- s.17(1) TFA requires a payment caused by a requirement — which did not occur here.
Comment
This Court of Appeal ruling has been widely recognised as a landmark decision, offering vital clarity on the relationship between historic, pre-2019 tenancy fees and the TFA.
It confirms that earlier payments—lawful at the time—do not automatically undermine later section 21 notices provided that subsequent tenancies do not require prohibited fees.
The judgment in Switaj -v- McClenaghan provides welcome certainty for landlords and agents and reinforces the continuing practical utility of section 21 while it remains part of the statutory framework.
Landlord Advice UK offers free legal advice to landlords and letting agents on all tenancy, possession, and compliance matters — including section 21, the TFA, and deposit protection.
For free legal advice, contact Landlord Advice UK today.
