Most leases require tenants to obtain the landlord’s permission before keeping pets in residential premises. Failure to do so constitutes a breach of covenant and, if the tenant refuses to part with his pet, could result in the forfeiture of the tenant’s lease. The resulting argument in Nettleton Road Housing Co-operative Ltd v Joseph [2010] EWCA Civ 228; [2010] PLSCS 80 highlights a fundamental principle that is all too easily forgotten. To be valid, a lease must be for a term that is certain or ascertainable.
The case concerned the effect of the notice provisions in a monthly tenancy agreement, which prevented the landlord from evicting its tenant unless he was in breach of his tenancy agreement, had been given written notice of the breach, and had failed to remedy it within the time specified in the notice.
The argument focussed on the principles explained in Prudential Assurance Company Ltd v London Residuary Body [1992] 36 EG 129 that if the landlord does not grant and the tenant does not take a term that is certain, the parties have not created a lease. Periodic tenancies are saved from being uncertain because they can be terminated at the end of any period. However, a provision preventing one or both parties from determining the tenancy will render the term uncertain: Warner v Browne (1807) 8 East 165.
Consequently, the trial judge had ruled that the notice provisions could not stand. They rendered the term partly certain, because the tenant could determine the lease at any time, and partly uncertain, because the landlord could not.
The tenant appealed on the grounds that he had no security of tenure, because he was the tenant of a fully mutual housing co-operative, and was now liable to eviction for arbitrary and capricious reasons. He argued that the notice provisions should remain intact to secure his rights under Article 8 of the European Convention on Human Rights (which protects homes and respect for family life) and that he should have been allowed more time to avoid the loss of his home.
The Court of Appeal held that it was unnecessary to decide the point of law raised by the tenant, because it would not affect the outcome. The tenant had committed a serious breach of covenant by introducing a dog into the house against the wishes of the other tenants, and had been given ample time in which to put things right. Consequently, he might win the legal argument, but would still be liable to eviction.
However, the case serves as an important reminder that parties should create determinable fixed terms, as opposed to leases with end dates that cannot be ascertained. A lease for a specified period, which includes a break clause that is exercisable at any time within that period on the occurrence of certain specified events, creates a term that is certain. A periodic tenancy that cannot be determined by the landlord before a specified date, except on the occurrence of certain specified events, is also valid because it too creates a determinable certain term.
Allyson Colby is a property law consultant
