[2015] EWHC 1615 (Ch), June 08, 2015
Hildyard J
The High Court, in a claim for possession brought by a fully mutual housing association, has distinguished Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52; [2012] 1 A.C. 955; [2012] H.L.R. 15. The court held that an agreement which purported to grant a weekly periodic tenancy, under which the landlord could only serve notice to quit in limited circumstances, granted a contractual licence. Accordingly, although the agreement was for an uncertain term it did not take effect as the grant of a 90-year lease. It was also held that the exclusion of the fully mutual housing association tenancies from security of tenure does not give rise to discrimination under Art.14, European Convention on Human Rights.
Toby Vanhegan and Tobias Eaton of Arden Chambers appeared for the defendants.
The claimant was a fully mutual housing association. The defendants were members of the co-operative and were joint tenants of a property owned by it. Clause 4(2) of their agreement with the co-operative provided that the co-operative “will only end this tenancy with a notice to quit on one of the grounds set out in clause 7 of the agreement”. By clause 7(1), the co-operative agreed to give the defendants at least one month’s notice in writing when it wished to terminate the agreement. By clause 7(3), the co-operative agreed that the defendants could only be required to give possession by order of the court and that it would not seek an order for possession except on specified grounds, one of which was rent arrears.
The defendants fell into rent arrears and the co-operative served notice to quit. Possession proceedings were issued in the county court and transferred to the High Court. The Secretary of State for Communities and Local Government was added as an interested party.
The defendants, relying on Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52; [2012] 1 A.C. 955; [2012] H.L.R. 15, argued that, because notice to quit could only be served in restricted circumstances, the agreement was for an uncertain term. It followed that it created a 90-year lease by virtue of s.149(6), Law of Property 1925 Act. They also argued that: (a) the exclusion of fully mutual housing-co-operatives from security of tenure was unlawful discrimination on the grounds of “other status” for the purposes of Art.14, European Convention Human Rights; and, (b) the co-operative was a public authority for the purposes of s.6, Human Rights Act 1998, and it would be disproportionate to evict them.
Hildyard J. distinguished the tenancy agreement in Mexfield from the defendants’ agreement. The terms of the defendants’ agreement showed that the parties had clearly not intended to create a lease for life. The agreement should be construed as the grant of a contractual licence, which licence was determined by the service of the notice to quit.
The defendants’ arguments based on the European Convention were also rejected. It was common ground between the parties that the exemption of tenants of fully mutual housing associations from security of tenure fell within the ambit of Art.8 so as to engage Art.14. It was held, however, that any differential treatment of such tenants was not the consequence of any “other status” so as to bring the case within Art.14. Further, any difference in treatment was minimal and fell within the margin of appreciation enjoyed by Parliament.
In relation to the proportionality defence, it was held that the co-operative was not a public body for the purposes of s.6, Human Rights Act 1998. Accordingly, following McDonald v McDonald [2014] EWCA Civ 1049; [2015] 2 W.L.R. 567; [2014] H.L.R. 43, a proportionality defence could not be raised.