Fully mutual housing association – Possession proceedings – Appellant tenant keeping dog in breach of tenancy agreement despite requests for its removal – Respondent landlord serving notice to quit and seeking possession – Whether possession claim breaching appellant’s human rights – Whether term to be implied into tenancy agreement requiring respondent to allow reasonable time to remedy breach – Appeal dismissed
The respondent was a housing co-operative that let residential properties to tenants. Since it was a fully mutual housing association, within the meaning of section 1(2) of the Housing Associations Act 1985, the tenancies it granted did not enjoy the statutory protection of the Housing Act 1988. The appellant had been a tenant of the respondent since 1983. Clause 12 of his tenancy agreement provided that his monthly tenancy could be terminated by the respondent on four weeks’ notice in the event that he committed a breach of the agreement and failed to remedy it within the period of time specified in a written notice given to him by the respondent’s management committee.
In August 2007, the appellant acquired a Staffordshire bull terrier and kept it at the premises without the respondent’s consent, in breach of his tenancy agreement. Following a general meeting, at which objections to the dog were received from other tenants, the respondent wrote to the appellant requiring its removal within two weeks. Following further meetings, some of which the appellant attended, and in the face of the appellant’s lack of co-operation, the respondent served him with notice to quit. The notice period expired in December 2007, but the appellant remained in occupation and continued to dispute the need to remove the dog. In January 2008, the respondent sought possession.
The respondent’s claim for possession was allowed in the county court. The judge rejected the appellant’s contention that terms should be implied into the tenancy agreement as to, inter alia, the giving of a reasonable time to remedy a breach. He held, applying Prudential Assurance Company Ltd v London Residuary Body [1992] 36 EG 129, that no conditions could be imposed on the service of a notice to quit in relation to a periodic tenancy, whether by implied terms or by the express terms of clause 12 of the tenancy agreement.
The appellant appealed. He argued that: (i) the exclusion of any system of statutory protection by the provisions of the 1988 Act, coupled with the removal of the protection of clause 12 of his tenancy agreement, resulted in a situation where the tenants of fully mutual housing associations could be evicted from their houses arbitrarily and capriciously, contrary to Articles 8 and 14 of the European Convention on Human Rights; (ii) the 1988 Act should be interpreted as excluding the operation of the Prudential rule from his tenancy by implication, so as to leave clause 12 of the agreement intact; and (iii) clause 12 should be construed as requiring a reasonable time to be given for remedying a breach.
Held: The appeal was dismissed.
It was doubtful whether the relevant provisions of the Housing Act 1988 could be construed in the way contended for by the appellant. Those provisions removed tenancies granted by various specified public and other bodies from the protection conferred on assured tenancies and did not, therefore, attempt to regulate such tenancies. It was difficult to see how even the most purposive construction of the statute could attribute to parliament an intention to do that which was the opposite of what it provided. Moreover, even on the appellant’s own argument, the requisite degree of compatibility with both Article 8 and Article 14 could be achieved by the implication of a term requiring the tenant to be given a reasonable opportunity to remedy the breach of covenant before the service of a notice to quit. In the instant case, the respondent had given an adequate and reasonable time to the appellant to remedy the breach. It had invoked its usual procedures of attempting to deal with the problem through dialogue at the monthly meetings, some of which the appellant had attended and had put his case. He had had several weeks in which to rehome the dog and could have avoided eviction had he offered to dispose of the animal. The decision to serve the notice to quit had been taken as a consequence of his refusal to comply. The appellant’s breach of covenant was a serious one, showing a complete disregard for the interests of the other tenants contrary to the fundamental principle of consent that underpinned associations of that kind. The respondent had operated the procedures set out in clause 12 of the tenancy agreement and its decision to serve the notice to quit was not an excessive or disproportionate response. Accordingly, even if the appellant were to succeed in all his arguments on the law, his case failed on the facts.
Richard Drabble QC and Alice Hilken (instructed by Cunningham Blake) appeared for the appellant; Ranjit Bhose (instructed by Glazer Delmar) appeared for the respondent.
Sally Dobson, barrister