Deal with pet peeves

We have recently acted for Drum Housing Association in the case Dee Thomas-Ashley v Drum Housing Association. In it a tenant appealed against a possession order following her breaching the terms of her tenancy agreement by keeping a dog at the property despite knowing this was prohibited. The defendant, who suffered from bipolar disease, raised a Disability Discrimination Act defence.

The facts

Drum did not own the freehold of the property but had a 99-year lease. Under the terms of the head lease there was a prohibition on nuisance or disturbance to other owners/occupiers in the block and a prohibition on animals. The head lease required any subsequent sub-leases or tenancies to reflect these terms of the head lease.

However, Miss Thomas-Ashley argued that the ‘no animals’ prohibition in her tenancy agreement made it impossible and unreasonably difficult for her to enjoy the premises. As she was a disabled person and the keeping of a dog was beneficial to her rehabilitation, she argued the letting term was unlawful and that Drum’s actions amounted to discrimination.

Furthermore, she argued that Drum’s duty under disability legislation required them to take reasonable steps to adjust the letting terms even in the face of a refusal from the head landlord.

The ruling

The Court of Appeal dismissed Miss Thomas-Ashley’s appeal, finding it was her attachment to the dog and not to the premises that was making it impossible or unreasonably difficult for her to comply with the terms of the tenancy. It pointed to the fact she had lived at the property for more than a year without a dog.

Furthermore, the court found that Drum had taken all reasonable steps available to them by requesting permission from the freeholder to change the tenancy terms and allow the keeping of the dog. When met with refusal and the likelihood of forfeiture proceedings, Drum had no option but to take possession proceedings in light of the risk of losing a valuable social housing unit and the premium paid for the lease.

Implications

The wider implication for the sector is that where a landlord takes reasonable steps in accordance with their duties under the DDA, the act will not defeat a claim for possession.

Where a registered housing provider is bound by superior covenants in a head lease, they cannot be reasonably required to make adjustments to their tenancy agreement where they simply do not have the power to do so.

This case illustrates that if a landlord takes reasonable steps when dealing with a request to amend its letting term, in the face of refusal from the head lessor, they can do no more and will not be expected to risk forfeiture.

Scott Greenwood is a partner at Coffin Mew Scottgreenwood@coffinmew.co.uk

Have your say

You must sign in to make a comment