Pollards Hill Housing Association v Marsh

A tenancy agreement may contractually restrict a landlord’s statutory grounds for possession where, read objectively, it states the exclusive circumstances in which the landlord will seek possession. Such terms are not merely descriptive of statutory rights.

A provision which distinguishes the tenant from persons living in or visiting the premises must be given that distinction. A landlord could not rely on the criminal conviction of another resident or visitor under ground 14 where the tenancy agreement confined that part of the possession ground to a conviction of the tenant.

The housing association sought possession of an assured tenancy under ground 14 of Schedule 2 to the Housing Act 1988. Controlled drugs had been found at the premises. The tenant’s partner, who lived at or visited the premises, was convicted of drug offences; the tenant was not convicted.

District Judge Fink held that clause 4.7 of the tenancy agreement reproduced the statutory ground and granted a suspended possession order. The tenant appealed. The issue was whether clause 4.7 contractually restricted the association’s right to rely on the conviction limb of ground 14 to a conviction of the tenant herself.

1. Appeal allowed unanimously. Kay LJ held, with whom Sir Anthony Evans and the President agreed, that the possession order could not stand.
2. Clause 4.7 had two distinct parts. Its first part expressly extended to the tenant and persons living in or visiting the premises. Its second part referred only to the tenant’s conviction. Throughout the agreement, the word you referred to the tenant, while other persons were expressly identified where their conduct was relevant. It could not therefore be read as including a resident or visitor in the second part.
3. The heading preceding clauses 4.3–4.12 stated that they were the only grounds and circumstances in which the association would serve notice and seek possession. Read as a whole, clause 4 was contractual and conferred rights more restricted than the statutory scheme. It was not merely an informal description of the tenant’s statutory protection.
4. The restriction was commercially intelligible. It prevented possession based solely on another person’s arrestable offence where there had been no nuisance or annoyance and the tenant had not herself been convicted. Parliament had given ground 14 a wider scope, but the association had chosen to limit its contractual use of that ground.
5. The partner’s conviction did not bring the claim within clause 4.7. No possession order could be made. The Court set aside the possession and below-costs orders, and ordered the association to pay the tenant’s costs of the appeal and the hearing below on the standard basis.

• Court of Appeal (Civil Division): allowed the tenant’s appeal in [2002] EWCA Civ 199, set aside the suspended possession order and set aside the costs order below.
• Croydon County Court: District Judge Fink granted the housing association a suspended order for possession on 19 April 2001, having construed clause 4.7 as permitting reliance on the conviction of a person living in or visiting the premises.