Housing association tenancy modelled upon assured tenancy provisions of Housing Act 1988 – Criminal conduct of tenant giving ground for possession under Act as amended after date of tenancy agreement but not otherwise – Whether agreement contemplated amendments to Act – County court ordering possession – Tenant’s appeal dismissed
On 8 August 1994 the claimant association granted to the defendant tenant a weekly tenancy of premises located on a housing estate in Preston. The tenancy agreement, having declared that the tenancy was an assured tenancy under the Housing Act 1988, purported, with the aid of cross-references to that Act, to paraphrase the grounds for possession listed in Schedule 2 to the Act. The association agreed not to give less than four weeks’ notice (the contractual notice) of its intention to seek a possession order. The agreement also conferred upon the tenant certain “further rights”, these being rights that he would have enjoyed by force of statute if the tenancy had been a secure tenancy (for example a council tenancy) under the Housing Act 1985.
During 1997 various amendments to the 1988 Act were brought into force, which had been made by the Housing Act 1996. As regards Ground 14 of Schedule 2 to the 1988 Act (tenant guilty of nuisance or illegal use of premises), these (the relevant amendments) enabled a landlord, inter alia: (a) to rely on that ground where a tenant had been convicted of an “an arrestable offence committed… in the locality of the dwelling house”; and (b) to commence proceedings immediately on service of a notice under section 8 (thus abolishing the two-week notice period required under the unamended section 8).
On 10 June 1988 the tenant was convicted of an arrestable offence contrary to the Protection of Harassment Act 1997, the victim being his daughter who lived on the same estate about three streets away from the demised house. On 15 June 1998 the association served the tenant with a section 8 notice founded upon Ground 14, and commenced possession proceedings three days later. The county court made an order for possession. The tenant appealed, contending that the association’s ability to take advantage of the relevant amendments was curtailed by the terms of the tenancy agreement, which, though incapable of cutting down the tenant’s statutory rights, was quite capable of placing additional restrictions on the landlord.
Held: The appeal was dismissed
1. On the true construction of the tenancy agreement, the association was entitled to rely on the substituted Ground 14 on the basis that the reference to the 1988 Act should be read as if followed by the words “as amended from time to time”. Any other construction would fossilise the agreement when this was obviously not the intention.
2. Because the agreement was modelled upon the 1988 Act, it was necessarily intended that the contractual notice requirement was subject to the overriding power of the court, given by section 8(1)(b), to dispense with the service of a notice where it was just and equitable to do so. On the facts found by the judge, there was ample material to enable the Court of Appeal to exercise that power in favour of the association. For that reason it was unnecessary to decide whether the contract disabled the association from relying on the abolition of the two-week notice requirement. However, there was considerable force in the association’s contention that that measure, though prima facie for the benefit of the landlord, should not be overriden by the agreement, as it exemplified the will of parliament to enable social landlords to bring immediate proceedings for the benefit of those in the neighbourhood: R v London Borough of Brent, ex parte Blatt (1991) 24 HLR 319 considered. In this regard the court derived little assistance from decisions on the Rent Acts, as the 1988 Act did not perpetuate the distinction drawn in the older legislation between contractual and statutory tenancies.
Sebastian Clegg (instructed by Sutcliffe Reed, of Preston) appeared for the appellant defendant; Michael Lemmy (instructed by Whitehead & Co, of Poynton) appeared for the respondent claimant.
Alan Cooklin, barrister
