NUISANCE AND LOCALITY FOR POSSESSION
A guest blog kindly provided by MSB Solicitors
Evictions and Anti-Social Behaviour (“ASB”) Injunctions are powerful legal remedies available to Social Landlords and Local Authorities in tackling ASB, whether arising from one property, or across whole estates or schemes.
Deciding whether to pursue an ASB Injunction or possession proceedings, or both can be a tricky choice and is case sensitive. It can depend on a number of factors such as the vulnerability of other residents or where an incident has happened. It can also depend on the nature of the ASB complained of and how this is causing a nuisance to others. Examples of nuisance behaviour can be:-
- Playing music in a property loudly so that it can be heard outside of the property.
- Use of cannabis at the property which neighbours can smell outside of the property and/or in their own properties.
- Dealing illegal substances in, or in the locality of the property.
- Banging, shouting and arguing in the property which can be heard outside of the property.
Grounds for possession
The most likely Grounds for possession, arising from Schedule 2, Housing Act 1988 (as amended), will be:-
- Ground 7A (if any 1 of 5 conditions are made out including being convicted of a serious offence (Condition 1) and being found to have breached an ASB Injunction (Condition 2), and that the offence or breach was committed wholly or partly in, or in the locality of, the dwelling, or against a person with a right to reside or occupy in housing accommodation in, or in the locality of the dwelling).
- Ground 12 (any obligation of tenancy breached (other than related to rent).
- Ground 14 (the tenant, other occupant or visitor caused/likely to cause nuisance or annoyance to a person residing, visiting or otherwise engaging in lawful activity in the locality, to the landlord or person employed, or convicted of using dwelling for immoral or illegal purposes, or an indictable offence committed in, or in the locality of, the dwelling).
Example Scenario 1
A friend of Tenant A regularly visits them often stays at Tenant A’s property. The property is on the 10th floor of a block of self-contained flats. Tenant A’s landlord is a Social Landlord.
Tenant B lives on the ground floor. They have additional needs and vulnerabilities which affect their decision making and capacity.
Tenant A’s friend begins to target Tenant B by using their bank card and loaning money from them. They are also reported to be passing packages and polythene bags from a window to other visitors to Tenant’s B’s property.
The above scenario does not involve any conviction but is likely to cause Tenant A to be in breach of their tenancy (Ground 12) and is likely to be causing a nuisance and annoyance to Tenant B who resides in the locality of Tenant A’s property (Ground 14). Possession proceedings could therefore be brought against Tenant A.
In addition, the Social Landlord’s housing management functions are engaged and an ASB Injunction could be sought against Tenant A’s friend.
Tenant C rents a 2 bedroomed terraced house on a housing estate from a Social Landlord who also own other properties on the housing estate. Tenant C has been convicted of attacking a male on the forecourt of a nearby petrol station which is ½ mile from Tenant C’s property and services local residents.
The Social Landlord makes enquiries with the local court who provide a certificate of conviction confirming that Tenant C was convicted of assault occasioning actual bodily harm pursuant to s47 Offences Against the Person Act 1861.
Tenant C may be in breach of their tenancy (Ground 12) and may be causing annoyance in the locality of Tenant C’s property (Ground 14).
The conviction is a “serious offence” within the definition of Schedule 2A, Housing Act 1985, and therefore on the face of it provides an absolute ground for possession and Ground 7A can be relied upon.
Locality Case Law
- In Manchester City Council v Lawler and Macmillan (1999) the question of locality was raised, and the court said that it was a matter of fact for the judge in each case to determine whether the conduct complained of has occurred in the locality. In this case it was held that an incident in a shopping centre three streets away from the tenant’s property was within the boundaries of the local estate and therefore within the locality. The locality of a particular dwelling house may be a part of the whole of a housing estate, or parts of two housing estates, or include the local shops serving the housing estate but within its boundaries.
- The case of Manchester City Council v Risak Sharif Ali (2002) concerned an appeal by the Local Authority of a Judge’s decision to dismiss an application for injunction against Mr Ali, for 2 reasons, the first of which is irrelevant for present purposes, the second being that the incident which led to the application being made had not taken place within the locality of the Mr Ali’s premises. The incident had taken place on Market Street in Manchester City Centre, and Mr Ali’s premises were approximately 1166 yards away at Thomas Court in Hulme. On appeal the Local Authority did not challenge the 2nd reason for dismissing the injunction application and although this in itself is not binding it can be suggested that the Local Authority, at least at this time, accepted that Market Street was not in the locality of Thomas Court, Hulme.
- In Knowsley Housing Trust v Prescott (2009), Knowsley issued possession proceedings against joint tenants for rent arrears and also for the conviction of Mr Prescott who pleaded guilty to conspiracy to supply cocaine and amphetamines; he had been involved in a drugs factory which was found approximately ½ a mile away from their property on the same housing estate. The criminal activity was found to have occurred in the locality. Further, Mr Justice Blair stated, ‘in general terms the more closely the criminal conduct in question is connected to the house in respect of which possession is sought, the more compelling the case for an immediate order for possession, and the converse must also be true’.
It is important to seek legal advice on a case by case basis, particularly where there is concern about the locality of a breach of tenancy and/or nuisance behaviour. If possession and/or injunction proceedings are taken and unsuccessful then the Social Landlord or Local Authority can be ordered to pay adverse costs, and of course will also need to explain to complainants and victims of nuisance behaviour why the tenant is still in occupation.
Some top tips from MSB when considering a locality issue are:-
Look at the seriousness of the behaviour complained of. If there is an arrest then check whether there has been a conviction and obtain the memorandum of conviction (Magistrates’ Court) or Certificate of Conviction (Crown Court).
Prepare a map of the area identifying the tenant’s property and where the incident occurred, confirming the distance between the two.
Who was the behaviour directed towards – was it another of the landlord’s tenants for example who lives on the same estate?
What type of place or property did the incident occur in or on – what service if any does it provide to the local community?
How, if at all, does the incident link back to the tenant’s property?
If you have any questions about this blog and/or case queries, please contact Phillip Coburn, Partner and Head of Market Rents at MSB