The applicant was the respondent’s secure tenant. The respondent decided to change its tenancy agreement, by including a list of items of repair for which it would be responsible and a procedure by which it could vary the terms of the agreement. In a further clause the respondent agreed that no variation might be made to the agreement which either reduced the respondent’s repair obligations or made them more difficult to enforce or which reduced the tenant’s security of tenure under the agreement. The respondent later decided to remove the list of its repair obligations from the agreement, to remove the contractual security of tenure provisions and to replace them with the grounds provided by the Act and to remove the variation clause, including clause 8(b). The tenant sought judicial review.
Held: Section 102 of the Act gave power to the respondent to vary the terms of a secure tenancy; clause 8(b) was itself a term of the tenancy and so could itself be varied by deletion pursuant to statutory procedure. It was a matter of construction of the statute.
Leggatt LJ: ‘Mr. Watkinson argues that it was open to the Council to agree not to exercise the power given by section 103. He says that that is what the council did in 1981 as a result of negotiations with the tenants’ associations. He submits that the effect of including clause 8(b) in the old Agreement was to preclude the Council thereafter from varying the standard form by reducing the security of tenure of tenants under the Agreement. The respondents, therefore, cannot now reduce the quality of the security, as they have purported to do in the fashion complained of under the applicant’s first argument. Attractive though the argument is, especially since that is what the average tenant might expect the position to be, it cannot, in my judgment, prevail over the language of the statute. Section 102 gives power to the Council to vary the terms of a secure tenancy by Agreement with the tenants, or alternatively, in accordance with section 103 by giving notice of variation of a periodic tenancy following compliance with the statutory arrangements for a preliminary notice. In that way the respondents can in effect vary the terms of the tenancy unilaterally. Clause 8(b) is itself a term of the tenancy, so it can be varied by deletion. It does not, after all, contain or constitute a promise that it will not itself be revoked. In truth, however, as I have earlier indicated, this represents no substantial diminution in the tenants’ rights. Their basic protection is afforded by the statute, and such embellishments of that protection as were brought about by contract, would, if enforceable, only have been of value in the event that the statutory protection was itself reduced in future . . .’
Owen J: ‘. . . I would only add that whilst not finding that it is possible I am far from convinced that it would be impossible for a local authority to contract out the powers given by sections 102 and 103 of the Housing Act 1985. However, if such a contracting out is possible, then it would need to be both clear and explicit. I am satisfied there was no such contracting out here. Once that conclusion is accepted, then the changes intended to be made by the proposed Tenancy Agreement do not provide a sufficient Basis for the application made here. . .’
Judges:
Leggatt LJ, Owen J
Citations:
(1991) 24 HLR 319
Jurisdiction:
England and Wales
Cited by:
Cited – North British Housing Association Ltd v Sheridan CA 29-Jul-1999
The respondent appealed against an order for possession made on the grounds that he had been convicted of breach of an order under the 1997 Act in harassing his daughter who lived nearby the premises. The tenant argued that the agreement had . .
Cited – Kilby v Basildon District Council Admn 26-Jul-2006
Tenants complained that the authority landlord had purported to vary a clause in his secure tenancy agreement which gave certain management rights to tenants.
Held: The powers to let on secure tenancies were governed by statute. The clause . .
Lists of cited by and citing cases may be incomplete.
Housing, Local Government
Updated: 16 May 2022; Ref: scu.221434
