Joseph v Nettleton Road Housing Co-Operative Ltd

A court need not resolve difficult common-law, statutory or Convention questions where an appeal can be disposed of on the facts. Assuming that a tenancy clause requiring notice of breach and an opportunity to remedy remains effective, the period allowed must be sufficient in the circumstances.

Keeping a dog without the required permission, against affected tenants’ wishes, may constitute a serious breach. Seven weeks, repeated meetings and clear notice that consent would not be given provided ample time to remove the dog. Persistence in the breach made possession neither unreasonable nor disproportionate. The wider Article 8 and Article 14 compatibility issues were left open.

Mr Elton Joseph was a tenant of a basement flat in premises owned by a fully mutual housing association. He kept a Staffordshire bull terrier without the written permission required by his tenancy agreement or the agreement of affected tenants. After correspondence and meetings, the association served a notice to quit and issued possession proceedings.

District Judge Lee ordered possession in the Woolwich County Court. Mr Joseph appealed, arguing that the notice and implied contractual safeguards were invalid or inadequate, and that the statutory scheme for fully mutual associations was incompatible with Articles 8 and 14. The central issues were whether the tenancy retained contractual limits on termination and whether the time allowed to remedy the breach was reasonable.

1. Disposition. The appeal was dismissed. The possession order stood because, even on Mr Joseph’s most favourable legal case, the breach and the opportunity given to remedy it justified possession.
2. Statutory and Convention framework. The tenancy was neither assured nor secure. The court noted that the Housing Associations Act 1985 and the Housing Act 1988 excluded fully mutual housing association tenancies from the statutory protection available to assured and secure tenants, including statutory grounds and suspended possession orders. The Co-operative was not a public body for the purposes of section 3 of the Human Rights Act 1998. The challenge therefore concerned the statutory scheme, rather than the proportionality of the Co-operative’s own decision.
3. Unresolved legal questions. The Co-operative relied on Prudential Assurance Company Limited v London Residuary Body [1992] 2 AC 386. The court was prepared to accept, without deciding, that the common-law rule concerning periodic tenancies invalidated the contractual restrictions relied upon by Mr Joseph. It expressed serious doubts about construing the statutory provisions to produce that result, but did not determine the issue or the wider Article 8 and Article 14 compatibility arguments.
4. Contractual safeguard. Assuming clause 12 was effective, clause 12.2.3 required notice sufficient to allow the tenant to comply with the covenant. The court also proceeded on the basis most favourable to Mr Joseph in relation to the suggested implied safeguards concerning seriousness and procedure.
5. Application of the facts. Keeping the dog without consent and against the wishes of affected residents showed disregard for the interests of other tenants and breached the consent-based structure of the association. The breach was serious. By the relevant meeting, Mr Joseph had had seven weeks to re-home the dog, had been told that consent would not be given, and had repeatedly refused to offer a date for removal. The District Judge was entitled to find that the period was ample and that possession was not excessive or disproportionate.
6. Final order. Appeal dismissed.

1. Court of Appeal (Civil Division). In [2010] EWCA Civ 228, the court dismissed the appeal.
2. Woolwich County Court. District Judge Lee ordered possession of the flat on or before 19 June 2009 following trial on 3 and 4 March 2009.