Joseph v Nettleton Road Housing Co-Operative Ltd [2010] EWCA Civ 228 is a decision that was decided on its facts, but since it is the first example of a claim for judicial review against a housing co-operative, I took an interest.

The facts are that Mr Joseph was a tenant of Nettleton Road Housing association. Nettleton Road Housing is a fully mutual housing co-operative. This means that its tenants can be neither secure, assured or (for those in residence for a long time) protected by the Rent Acts. The thinking being that a co-op, being run by its members, can be relied on to act fairly towards the generality of its tenants. Mr Joseph therefore had no security of tenure.

Under his tenancy agreement, clause 12.1 permitted the association to end the tenancy by 4 weeks’ notice, but by clause 12.2 agreed only to do so if the tenant had committed a breach of the agreement; the Management Committee had given the tenant notice of the breach and a period of time in which to remedy it and the tenant had failed to do so.

One term of the agreement was that no tenant would keep any pet without prior agreement. Mr Joseph had kept a Doberman from 1985 until 1996 with permission. In August 2007 he started keeping a Staffordshire bull terrier.

At a general meeting of the association on 9th September 2007 a complaint was raised about Mr Joseph keeping a dog and it was resolved that he would be given two weeks’ notice to rehome it. Notice was given to Mr Joseph on 25th September giving him 14 days to rehome the dog. Mr Joseph did not do so. At the next general meeting, on 15th October 2007 it was resolved that a meeting should be held to discuss taking the next step, which might involve expelling Mr Joseph.

At the general meeting on 11th November 2007 — the first at which Mr Joseph had been present — a letter from Mr Joseph’s solicitors was discussed. Amongst other things it complained that Mr Joseph had been unreasonably singled out and treated less favourably than other members of the co-op who had been allowed to keep pets. The meeting was unimpressed: pointing out that the pets in question were not dogs, and having heard complaints concerning the dog’s behaviour, decided to serve a notice to quit on Mr Joseph.

The notice was served on 13th November, on 26th November Mr Joseph formally asked permission to keep the dog, but this was refused by the Vice-Chair of the association. At the January meeting Mr Joseph said, for the first time, that he was keeping the dog for a friend who was ill and would be returning it to him when he had recovered. This news was treated with some scepticism by the meeting and it was decided to bring possession proceedings.

Mr Joseph ran the following lines of defence:

• (relying on the association being a public body) eviction was in breach of his rights under article 8 ECHR and was disproportionate in the circumstances
• the legislative scheme covering fully mutual housing associations was incompatible with article 8 ECHR
• there should be implied into his tenancy agreement implied terms to the effect that a tenant will be given reasonable time to remedy any breach of covenant and that a notice to quit will only be served in circumstances which are sufficiently serious to justify eviction.

The last point was countered by the association who relied on Prudential Assurance Company Limited v London Residuary Body[1992] 2 AC 386 in which Lord Templeman said “A term must either be certain or uncertain. It cannot be partly certain because the tenant can determine it at any time and partly uncertain because the landlord cannot determine it for an uncertain period. If the landlord does not grant and the tenant does not take a certain term the grant does not create a lease.”

The judge agreed and found that clause 12 and the implied terms contended for by Mr Joseph were all void for that reason – otherwise Mr Joseph’s tenancy would be of uncertain duration, an impossibility in English law.

On appeal, Mr Joseph accepted that the association were not a public body, so his appeal was confined to the second two points, which were combined by his counsel in the following way: the statutory scheme of the Housing Act 1988 removed any statutory security of tenure from Mr Joseph, the operation of the rule in Prudential would prevent the operation of terms like clause 12, leaving Mr Joseph in a precarious position. In consequence the 1988 Act must, in order to be consistent with the Human Rights Act 1998 be read as preventing the operation of the rule in Prudential in such cases, so that clause 12 (and the relevant implied terms) would be operative.

The Court of Appeal thought this was all very interesting and important, but did not want to decide such serious questions when they did not have to. The Court considered that Mr Joseph’s breach of his tenancy agreement was, in the circumstances, serious and that he had been given ample time to remedy it, or at least to put forward to a time scale for remedy which he had not done. So that even if Mr Joseph did succeed on all his arguments, he was bound to lose on the facts.

So, all very interesting, but nothing decided. It seems to me that co-operatives can be public bodies but need not be. For example, the percentage of tenants nominated to a co-op varies, in my experience, from zero to 100% and the extent of public funding varies in the same way. So Mr Josephs’ concession on appeal seems correct.

We shall have to wait for another case to answer some of the more interesting questions asked in this one. My colleague NL invented (with characteristic wit) the title for this post, I merely wrote it.