Mexfield Housing Co-Operative Ltd v Berrisford

A tenancy excluded from the statutory assured-tenancy regime may remain a common-law contractual tenancy. Where its terms permit termination by contractual notice, the landlord may terminate it without proving arrears, breach or another ground, subject to applicable statutory protection. The court’s summary-judgment task is whether the defence has a real prospect of success, not whether it is merely improbable. For a tenancy of this kind, postponement of possession is governed by Housing Act 1980, section 89, including its exceptional-hardship limit.

The landlord appealed against HH Judge Mitchell’s refusal, in the Central London County Court, to grant summary judgment for possession of residential premises. The tenant’s tenancy began in 1993 and the landlord served a notice to quit in February 2008. The landlord argued that its fully mutual housing-association status excluded the tenancy from the assured-tenancy regime and that the tenancy was therefore terminable at common law by contractual notice. The tenant relied on issues concerning rent arrears and waiver. By the hearing of the appeal, the arrears had been paid. The central issues were whether the tenancy was validly terminated and whether the landlord was entitled to possession.

1. Appeal allowed. The tenancy was a common-law contractual tenancy because the landlord satisfied the relevant housing-association exceptions. The rules restricted occupation to members, required a tenant or prospective tenant to become a member, and prohibited granting an agreement other than to a member (paras [16]–[22]).
2. The tenancy was terminable by service of the contractual notice, with a minimum period of four weeks. The power to terminate was not displaced by an overriding statutory procedure. Arrears, waiver of the contractual rent-payment arrangement and the tenant’s subsequent payment of the arrears were irrelevant to that power. The landlord was entitled to terminate without giving reasons, even if the rent had been fully paid (paras [21]–[24]).
3. The summary-judgment test under CPR 24.2 required the court to determine whether the defence had a real prospect of success and whether there was another compelling reason for trial. The test was one of reality rather than probability, with appropriate caution against over-confident claims and inadequately substantiated defences (para [20]).
4. Possession could be postponed only under section 89 of the Housing Act 1980. The provision governed the court’s power to adjourn or postpone possession for this type of tenancy, subject to the statutory exceptional-hardship limit (para [25]).
5. The landlord’s appeal therefore succeeded, and summary judgment for possession followed. The judgment records no separate costs order.

• High Court (Chancery Division): allowed the landlord’s appeal against HH Judge Mitchell’s order dated 20 November 2008 in the Central London County Court, which had dismissed the application for summary judgment for possession.