Joseph v Nettleton Road Housing Co-Operative Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Ward |
| Judgment Date | 16 March 2010 |
| Neutral Citation | [2010] EWCA Civ 228 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2009/1352 |
| Date | 16 March 2010 |
[2010] EWCA Civ 228
IN THE HIGH COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WOOLWICH COUNTY COURT
District Judge Lee
Before: Lord Justice Ward
and
Lord Justice Patten
Case No: B5/2009/1352
Claim No. 8WO00110
Richard Drabble QC and Ms Alice Hilken (instructed by Cuningham Blake) for the Appellant
Ranjit Bhose (instructed by Glazer Delmar) for the Respondent
Hearing date: 23 rd February 2010
Lord Justice Patten:
The Appellant, Mr Elton Joseph, is the tenant of the basement flat (“the Flat”) at 7 Nettleton Road, London, SE14. This is one of eight houses in Nettleton Road owned by the Respondent. There are three other flats in No. 7 together with a communal area and the tenants also share a garden with the residents of one of the adjoining houses.
The Respondent (“the Co-operative”) is a fully mutual housing association within the meaning of s.1(2) of the Housing Associations Act 1985 (“HAA 1985”). It is also registered as a co-operative housing association under the provisions of the Industrial Provident Societies Act 1965. Fully mutual housing associations are non-profit making organisations set up for the benefit of their members. They operate in accordance with rules under which the business of the association is managed through general meetings of its members on a democratic basis. The Co-operative has adopted model rules under which each registered member is entitled to attend the meetings and has one vote. There is an annual general meeting but the management of the day-to-day running of the Co-operative is delegated to a committee made up of members who are elected at the AGM.
Under the rules all tenants of the Co-operative must be members and all members must be tenants or prospective tenants: see Rule 7(b). Membership terminates on death, resignation, expulsion or the termination of the member's tenancy. The rules contain no provisions governing the circumstances in which a tenancy may be brought to an end but Rule 10 specifies a procedure governing expulsion under which a resolution has to be passed by two-thirds of the members present and voting at a general meeting of the Co-operative at which at least 50% of its members are present. The member must be given advance notice in writing of the complaint at least 28 days before the meeting and the details of the complaint and the member's response to it are then considered at the meeting.
The Co-operative also operates a procedure for resolving disputes which is commonly referred to as the Grievance Procedure. This is designed to deal with issues arising between members or between members and the Co-operative and may, in some cases, lead to expulsion from membership. There is also a provision in Rule 40 which allows certain disputes between members and the Co-operative to be referred to arbitration. But in this case none of these procedures was invoked by either Mr Joseph or the Co-operative nor was any attempt made to expel him from membership under the provisions of Rule 10.
Tenancies granted by fully mutual housing associations as defined in s.1(2) HAA 1985 are neither assured nor secure tenancies. They are excluded from being assured tenancies by s.1(2) and paragraph 12(h) of Schedule 1 Part 1 to the Housing Act 1988 (“HA 1988”). As a consequence, they do not enjoy the statutory protection conferred by HA 1988 which preserves the tenancy until determined by an order of the court and requires the landlord to bring the case within one of the grounds for possession set out in Schedule 2 to the Act. Even when grounds for possession exist, the court has an extended discretion under s.9 to make a suspended order for possession on conditions such as compliance with the terms of the tenancy agreement.
A fully mutual housing association does not satisfy the landlord condition under s.80 of the Housing Act 1985 (“HA 1985”) because it is not a registered social landlord within the meaning of s.5(4) of the Act. The tenancies it grants are not therefore secure tenancies and consequently do not enjoy the statutory protection imposed by s.82–85 HA 1985 which require the statutory grounds for possession to be established and for an order of the court to be made. As in the case of assured tenancies, s.85 gives to the court power to make suspended orders for possession on terms and thereby to control the claim for possession at all stages in the process: see (e.g.) Sheffield City Council v Jepson (1993) 25 HLR 299.
Mr Joseph was a founding member of the Co-operative and has been a tenant of the Flat since 1983. A copy of his original tenancy agreement does not survive but it is common ground that in 1995 each member agreed to enter into a new tenancy agreement which replaced the original contract.
The tenancy agreement grants to the member a monthly tenancy at a rent which may be varied on four weeks’ notice. Changes to the rent are approved by the Co-operative from time to time in general meeting. Clause 6 of the agreement sets out the tenant's covenants. These include (in clause 6.17) a covenant that:—
“6.17 The tenant shall not, without the Co-operative's written permission:
…
6.17.6 Keep any pet in the premises. Such permission will only be granted by the Co-operative if it has the agreement of all other tenants affected.”
Clause 12 of the agreement is headed “Ending the Tenancy”. So far as material it provides:—
“12.1 The tenant may bring the tenancy to an end by giving the Co-operative 4 weeks written notice.
12.2. The Co-operative may bring the tenancy to an end by giving the tenant 4 weeks written notice to quit. This shall only be in the following circumstances:
…
12.2.3 If the tenant has committed any breach of the agreement and the Management Committee has given the tenant written notice of the breach complained of and the tenant has failed to remedy it within the period of time stated in the notice.
…
12.3 When a notice to quit has been served by the Co-operative and has expired the Co-operative may apply to the court for a possession order.”
From 1985 until 1996 Mr Joseph kept a Doberman dog in the flat with the permission of the then members of the Co-operative. In about August 2007 he acquired a Staffordshire bull terrier. The dog, he says, belonged to a friend who was in hospital suffering from cancer, although no mention was made of this at the time. He did not ask either the Co-operative or his neighbours at No. 7 for permission to bring the dog onto the premises. His attitude seems to have been that he did not need their permission because he had in the past kept a dog there.
On 9 th September 2007 there was a general meeting of the Co-operative at which the dog was discussed. Mr Joseph did not attend. One of the tenants in the house, Ms Kelly Martinez, complained that the other residents had not been asked for permission and that at least two of them objected to it. Mr Joseph's attitude was reported to be that it was his dog and he was going to keep it. The meeting agreed that the secretary should write to Mr Joseph informing him that he was in breach of covenant and giving him two weeks to re-home the dog. A letter to this effect was sent to Mr Joseph on 25 th September. He was told that keeping the dog was a breach of clause 6 of the tenancy agreement and was asked to remove it within 14 days, failing which further action would be taken.
The next meeting of the Co-operative took place on 15 th October. Again Mr Joseph was not present. By then there had been no response to the letter and the dog had not been removed. The members agreed that they should call a meeting to discuss the next step which could involve invoking the grievance or expulsion procedures.
At the monthly general meeting of the Co-operative on 11 th November Mr Joseph was present. By then he had sought and obtained advice from the Evelyn 190 Centre in Deptford who had written a letter to the secretary of the Co-operative on his behalf. The letter complained that Mr Joseph had been unreasonably singled out and treated less favourably than the other members. Some of them, it said, had been allowed to keep pets, although Mr Joseph had been refused permission to do so. The letter did not suggest that Mr Joseph was simply looking after the dog for a friend nor did it propose a timescale in which he would be able to dispose of it.
The letter was discussed at the 11 th November meeting. The terms of clause 6 were read out and the point was made that the other members of the Co-operative were not agreeable to the dog remaining in the Flat. Mr Joseph denied that the dog had damaged and messed in the garden. But he made no proposals for its removal. The end result of the meeting was that consent for the dog was refused and a decision made to serve a notice to quit.
The notice was served on 13 th November. It required possession to be given up on 10 th December 2007 or the day on which a complete period of the tenancy expired next after the end of four weeks from the service of the notice. It therefore complied with the minimum period of notice required both under the agreement and under the provisions of the Protection from Eviction Act 1977.
On 26 th November Mr Joseph responded to the notice by writing to the secretary of the Co-operative asking for permission to keep the dog. Again there was no mention of his keeping it for a friend or any offer to re-home it. Mr Joseph explained in the letter that he had not previously asked for permission because he...
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...Parker LJ in Bhai v Black Roof Community Housing Association Ltd [2001] 2 All ER 865 at [13]; and Patten LJ in Joseph v Nettleton Road Housing Co-Operative Limited [2010] EWCA Civ 228 at [6]. (3) Further, from 15 January 1989 new housing association tenancies were also excluded from the s......
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...see Section C below) have also done so: an example is contained in the facts of the recent decision of this court in Joseph v. Nettleton Road Housing Co-operative Ltd [2010] EWCA Civ 228. Mexfield tells us, off the cuff, that since about 1992 it has entered into perhaps 500 such agreements ......