Possession proceedings – Appellant landlord claiming entitlement to possession by virtue of notice to quit served on respondent tenant – Housing Associations Act 1985 – Fully mutual housing co-operative association – Whether tenancy excluded from protection of Housing Act 1988 as falling within exception in para 12(1)(h) of Schedule 1 – Whether common law tenancy terminable by notice regardless of whether tenant in breach – Appeal allowed
The respondent was the tenant of residential premises let to her by the appellant landlord since 1993. By 2008, the respondent had rent arrears of approximately £1,000 because her housing benefit was paid monthly in arrears, whereas the tenancy provided for rent to be payable weekly in advance. The appellant served notice to quit on the respondent, purporting to terminate the tenancy in March 2008. It subsequently brought possession proceedings on the grounds that the tenancy was a tenancy from month to month that had been terminated by notice and, in addition, was forfeit on account of rent arrears. The respondent claimed that she had an assured tenancy protected under the Housing Act 1988.
The appellant applied to strike out the defence and sought summary judgment on its possession claim. It contended that: (i) it was registered under the provisions of the Industrial and Provident Societies Act 1965 and was a fully mutual housing co-operative association within the meaning of the Housing Associations Act 1985; (ii) therefore, the tenancy fell within the exception in para 12(1)(h) of Schedule 1 to the 1988 Act; and (iii) consequently, the tenancy fell outside the provisions of the 1988 Act and was a periodic tenancy at common law, which could be terminated according to its terms by service of a four-week notice to quit. The county court judge rejected that contention, held that the appellant had waived the contractual obligation for advance payment of rent, and dismissed its application. The appellant appealed. By the date of the appeal, the rent arrears had been paid.
Held: The appeal was allowed.
Having regard to its rules of association, the appellant satisfied the exceptions under the 1985 Act. It followed that the respondent’s tenancy was a common law tenancy with no overriding statutory procedure to protect it. It could be terminated by an appropriate contractual notice, which the appellant had served. Given that the appellant had an overriding right to terminate the tenancy by notice, without having to provide a reason, it was irrelevant whether there were rent arrears, or that the appellant had agreed to take the rent on a different basis than that specified in the tenancy agreement. The tenancy had been terminated and the respondent’s defence had no prospect of success: Prudential Assurance Co Ltd v London Residuary Body [1992] 36 EG 129 applied.
Kerry Bretherton (instructed by Rickerbys, of Cheltenham) appeared for the appellant; the respondent appeared in person.
Sally Dobson, barrister
