The case of Mexfield Housing Co-Operative v Berrisford [2009] EWHC 2392 (Ch) illustrates the potentially precarious situation in which the tenant of a fully-mutual Housing Co-operative may find themselves.
The facts are simple. Miss Berrisford had been a tenant of Mexfield since 1993, she had difficulty with her rent so that she fell into arrears (at the first hearing of the claim they were approximately £1,000). The judge accepted that the arrears had arisen through no fault of her own but were due to a “mix-up” in housing benefit. Whether due to the arrears or for some other reason (the judgment does not tell us) a notice to quit was served on her that would end her tenancy on 17th March 2008.
The Circuit Judge had dismissed the landlord’s application for summary judgment. It is not entirely clear what arguments arose in the County Court, but it appears that the arrears of rent were one matter that was in issue. Peter Smith J summarised as follows:
“The learned Judge below primarily decided the issue against the Appellant on the basis that they had waived the contractual obligation for an advance payment of rent. He rejected the Appellant’s submission based on Prudential Assurance v The London Residual Body H.L. [1992] 2 AC 386 that the tenancy was a periodic tenancy terminable on that basis and that any provision which purported to vary that would mean that the lease was of an uncertain duration and would therefore be void.”
It is not entirely clear what else was said in the County Court, but clearly the issue of rent was a red herring. This is because tenancies granted by fully mutual housing associations are excluded from being assured tenancies by paragraph 12(h) of Schedule 1 to the Housing Act 1988. Thus whether or not a tenant is in arrears, a notice to quit would normally be good to end a tenancy.
Miss Berrisford would appear to have no hope, and that was the view taken by Peter Smith J who granted summary judgment. Unless there is more to this than meets the eye (as there so often is) it seems rather tough on Miss Berrisford who had been a tenant for 15 years and whose arrears were not her fault (and were entirely paid off by the time of the appeal), but is it the right conclusion?
The idea behind excluding fully mutual housing associations from the protection of the assured tenancy regime must be that they will be regulated by (at the relevant time) the Housing Corporation and will be run by their tenants and so, one would hope, have a more tenant friendly attitude than a private landlord. I wonder whether a Weaver style argument could be deployed in defence of a case like this.
As those familiar with housing co-operatives will know they are extremely varied. Some have no regular injections of public money and select their tenants from applications made direct to the association, others have large annual grants and all tenants nominated by the local housing authority. It seems to me that somewhere on that scale a fully mutual housing association will become a public body so that public law arguments may be deployed in defence of a possession claim.
Something like this may have been attempted in Miss Berrisford’s case because it appears that an article 8 argument had at least been pleaded in the County Court where she was represented by counsel. In the High Court she was unrepresented and, I suspect, would have found a Weaver argument hard to deploy.
When Miss Berrisford became a tenant, the statutory guidance given by the Housing Corporation to tenants was contained in the “Tenant’s Guarantee: Guidance on the Management of Housing Accommodation by Registered Housing Associations which are Fully Mutual Co-operatives”. Clause C4.1 of which states:
Housing co-operatives should offer their tenants contractual rights in their tenancy agreements which are at least equivalent to the statutory protection given by the relevant provisions of the Housing Act 1988 to assured tenants….
I think there must be at least an argument that in failing to comply with that obligation Mexfield were acting unlawfully (if they were a public body) and thus at least some protection for tenants in Miss Berrisford’s position.
What do readers think? Is there more relevant and recent guidance on the topic?