Dealing with Tenancy Breaches

Dealing with Tenancy Breaches

Samantha Grix

Devonshires Solicitors

Types of Breaches

• Anti-social and/or criminal

behaviour

• Rent arrears

• No access

• Tenancy fraud

• Hoarding

• Damage

• Unauthorised works

• Anything else?

Injunctions

An Injunction can be brought:

1. Within existing proceedings

2. As a free standing claim (Part 8 Claim)

3. Under a Statutory Provision (e.g. an ASB Injunction)

Part 8 Injunction

• An injunction to rectify a breach of tenancy

– N.B if the breach relates to ASB then Part 8 would not be the most

appropriate cause of action.

• Examples of when you would use a Part 8 Injunction:

– Unauthorised works or damage

– Running a business from the Premises

Part 8 Injunction

• Need to prove on the balance of probabilities that the

tenant has breached the term of the tenancy.

– First hand evidence from witnesses

– Photographs

– Documents from relevant third parties such as the

LA, Environmental health, surveyor etc.

Part 8 Injunction

• N1 Claim Form

• Fully pleaded particulars of claim

• Witness statement(s) supporting the action and detailing all of

your evidence.

Part 8 Injunction

• What terms can you obtain?

– Prohibitions from taking a particular action, or

– Requirement to take a particular action

• Breach of the Order amounts to contempt of court

– Custodial sentence and/or

– Fine

Injunctions for Anti-Social Behaviour

• Anti-Social Behaviour Crime & Policing Act 2014

• Make provision for tackling Anti-Social Behaviour

crime and disorder, including provision for recovery of

possession.

Anti-Social

Behaviour Crime

and Policing Act

2014

1. Injunctions

2. Criminal

Behaviour Orders

3. Dispersal

powers

4. Community

protection

6. Local

involvement

and

accountability

Anti-Social

Behaviour Crime

and Policing Act

2014 (Cont.)

7. Dangerous

dogs 8.Firearms 9. Protection

from sexual harm

and violence

10. Forced

marriage

11. Policing etc. 12. Extradition

13. Criminal

Justice and

Court fees

The Anti-Social Behaviour Crime and Policing Act

2014: Where Are We Now?

• Parts of the Act came into force on 13 May 2014 and

14 July 2014.

• Parts 2-6 come into force on 20 October 2014

• Part 1 (Civil Injunction) deferred to 23 March 2015.

Injunction

• Part 1, Section 1.

• This section caused the most controversy.

• Subsequently revised and amended in the House of

Lords, apparently in order to protect carol singers,

nudists, bell ringers and trick or treaters!

The Test

• A Court may grant an Injunction against a person aged

10 or over if two conditions are met:

• The first condition: The Court is satisfied on the

balance of probabilities that the Respondent has

engaged or threatens to engage in Anti-Social

Behaviour

The Test (cont)

• The second condition: The Court considers it just

and convenient to grant the Injunction for the purpose

of preventing the Respondent from engaging in Anti-

Social Behaviour.

• This is a new criteria but in reality shouldn’t affect a

landlord’s ability to obtain an injunction as the court

always has reasonableness in mind.

Meaning of Anti-Social Behaviour

• Section 2(1) – “Anti-Social Behaviour” means:

a) Conduct has caused or is likely to cause

harassment, alarm or distress to any person; or

b) Conduct capable of causing nuisance or

annoyance to a person in relation to that

person’s occupation of residential premises; or

c) Conduct capable of causing housing related

nuisance or annoyance to any person

Meaning of Anti-Social Behaviour (Contd.)

• Section 2(1)(b) applies only where the Injunction under

Section 1 is applied for by:

a) A Housing Provider

b) A Local Authority

c) A Chief of Police

Meaning of Anti-Social Behaviour (Contd.)

• In section 2(1)(c) “housing related” means directly or

indirectly relating to the housing management

functions of:

a) A Housing Provider

b) A Local Authority

Meaning of Anti-Social Behaviour (Contd.)

• The housing management functions include:

a) Functions under enactment

b) Powers and duties of the Housing Provider or

Local Authority as the holder of an estate or

interest in housing accommodation

Purpose of the Injunction

• The Injunction may:

a) Prohibit the Respondent from doing anything

described in the Injunction

b) Require the Respondent to do anything

described in the Injunction

Purpose of the Injunction (contd)

• The Injunction must specify the period for which it has

effect or state it has effect until further Order

• In the case for an Injunction granted before the

Respondent has reached 18 a period must be

specified of no more than 12 months.

Jurisdiction

• In the case of a Respondent under 18 – the Youth

Court

• In any other case – The High Court or County Court

Section 3 - Positive Requirements

• The Court has a power to make positive requirements

in an Injunction.

• The Order must specify the person responsible for

supervising compliance with the requirement.

• Before including a requirement the Court must receive

evidence about its suitability and enforceability.

Section 4 - Power of Arrest

A Court granting an Injunction may attach a Power of

Arrest to a prohibition or requirement if the Court thinks

that –

a) The ASB in which the Respondent has engaged

or threatens to engage, consists of or includes the

use or threatened use of violence against other

persons, or

b) There is a significant risk or harm to other persons

from the Respondent.

Section 4 - Power of Arrest (contd)

• “Requirement” does not include one that requires a

respondent to participate in a particular activity i.e

parenting classes.

• The power of arrest can be for shorter period that the

prohibition or requirement it relates to.

Section 5 - Who can apply for an Injunction?

a) Local Authority

b) Housing Provider

c) Chief Officer of Police

d) Chief Constable of the British Transport Police Force

e) Transport for London

f) The Environment Agency

g) The Natural Resources Body for Wales

Who can apply for an Injunction? (Contd.)

h) Secretary of State exercising Security Management

Functions or a special health authority exercising

security management functions on the direction of the

Secretary of State or;

i) Welsh Ministers exercising the same functions as set

out above

Who can apply for an Injunction? (Contd.)

• A Housing Provider may make an application only if

the application concerns ASB that directly or indirectly

relates to or affects its housing management functions.

Section 6 - Applications Without Notice

• An application may be made without notice and if

made without notice the Court must either:

a) Adjourn the proceedings and grant an interim

Injunction; or

b) Adjourn the proceedings without granting an

interim Injunction; or

c) Dismiss the application

Section 7 - Interim Injunctions

• Where the Court adjourns the hearing of an

application the Court may grant an Injunction lasting

until the final hearing of the application or further

Order.

• An interim Injunction made at a hearing where the

Respondent was not given notice may not have the

effect of requiring the Respondent to participate in

particular activities.

Section 8 - Variation or Discharge of Injunctions

• The Court may vary or discharge an Injunction Order

on the application of the Claimant or Respondent

• The Court has the power to:

– include additional prohibitions or requirements

– extend the period for which a prohibition or

requirement has effect

– attach a Power of Arrest

– extend the period for which a Power of Arrest has

effect.

Section 9 - Arrest Without Warrant

• A Power of Arrest may be attached to a provision of

the Injunction whereby a constable may arrest the

respondent without warrant if he or she has

reasonable cause to suspect the respondent is in

breach of the provision.

• The person arrested must be brought before the Court

within 24 hours

Arrest Without Warrant (Contd)

• The appropriate Court will be the County Court if the

Injunction was granted by the County Court.

• If the Injunction was granted by a Youth Court but the

Respondent is 18 or over it will also be dealt with by

the County Court.

• Otherwise, it must be brought before a Justice of the

peace.

Section 13 - Power to Exclude Person from Home

in Cases of Violence or Risk of Harm

• An Injunction may exclude a respondent from the

place where he or she normally lives only if –

a) The respondent is 18 or over

b) The Injunction is granted on the application of a:

i) Local Authority

ii) Chief Officer of Police for the area that the

premises are in, or

iii) The premises are owned or managed by a

Housing Provider, that Housing Provider and;

Power to Exclude Person from Home in Cases of

Violence or Risk of Harm (Contd)

c) The Court thinks that:

i. The ASB in which the respondent has engaged or

threatens to engage consists of or includes the

use or threatened use of violence against other

persons or;

ii. There is a significant risk of harm to other persons

from the respondent.

Section 14 - Requirements to Consult

• Before applying for an Injunction:

– If the respondent is under 18 you must consult the

Local Youth Offending Team.

– Inform any other Body, or individual if the applicant

thinks appropriate, of the application.

• This does not apply to a without notice application.

Requirements to Consult (Contd.)

• Where the Court adjourns a without notice application

before the date of the first on notice hearing the

Applicant must consult the Local Youth Offending

Team about the application if the Respondent will be

aged under 18 on that date;

• Inform any other Body or individual the Applicant

thinks appropriate of the application.

Section 16 - Special Measures for Witnesses

• The Act makes provision for special measures in the

same way as in the Youth Justice and Criminal

Evidence Act 1999 to apply to Injunction proceedings.

• Special measures can be applied for to assist

vulnerable and intimidated witnesses.

Possession Proceedings

Rebecca Brady

Devonshires Solicitors

Possession

• Service of notice is precursor:

– NOSP

– NTQ

– Section 21 Notice

• Claim in the County Court

• Plead Grounds for Possession

• Need to get the right ground depending on the breach

Legislation

• Secure tenancies – Housing Act 1985

• Assured tenancies – Housing Act 1988

• Grounds are listed in Schedule 2 of each Act

Discretionary Grounds vs. Mandatory

Grounds/Claims

• Discretionary grounds = If ground made out, court has

very wide discretion as to whether or not to make an

order

• Mandatory grounds/claim = If ground/claim made out,

court must make an order except in very limited

circumstances

Common Discretionary Grounds For Possession

• Secure Tenancy

• Ground 1 – rent arrears or other breach of tenancy

• Ground 2 – ASB/nuisance/annoyance/indictable

conviction

• Assured Tenancy

• Grounds 10 and 11 – rent arrears

• Ground 12 – other breach of tenancy

• Ground14 - ASB/nuisance/annoyance/indictable

conviction

Secure - Ground 1

• Rent lawfully due from the tenant has not been paid or an

obligation of the tenancy has been broken or not performed.

Secure - Ground 2 The tenant or a person residing in or visiting the dwelling-house

(a)has been guilty of conduct causing or likely to cause a nuisance or annoyance to a

person residing, visiting or otherwise engaging in a lawful activity in the locality,

(aa)has been guilty of conduct causing or likely to cause a nuisance or annoyance to

the landlord of the dwelling-house, or a person employed (whether or not by the

landlord) in connection with the exercise of the landlord’s housing management

functions, and that is directly or indirectly related to or affects those functions, or

(b)has been convicted of –

i. using the dwelling-house or allowing it to be used for immoral or illegal

purposes, or

ii. an indictable offence committed in, or in the locality of, the dwelling-house.

Assured – Ground 10

• Some rent lawfully due from the tenant—

• (a)is unpaid on the date on which the proceedings for

possession are begun; and

• (b)except where subsection (1)(b) of section 8 of this

Act applies, was in arrears at the date of the service of

the notice under that section relating to those

proceedings.

Assured – Ground 11

• Whether or not any rent is in arrears on the date on

which proceedings for possession are begun, the

tenant has persistently delayed paying rent which has

become lawfully due.

Assured - Ground 12

• Any obligation of the tenancy (other than one related

to the payment of rent) has been broken or not

performed.

Assured - Ground 14

• The tenant or a person residing in or visiting the dwelling-house —

(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a

person residing, visiting or otherwise engaging in a lawful activity in the locality,

(aa) has been guilty of conduct causing or likely to cause a nuisance or annoyance to

the landlord of the dwelling-house, or a person employed (whether or not by the

landlord) in connection with the exercise of the landlord's housing management

functions, and that is directly or indirectly related to or affects those functions or

(b) has been convicted of —

(i) using the dwelling-house or allowing it to be used for immoral or illegal purposes, or

(ii) an indictable offence committed in, or in the locality of, the dwelling-house.

Less common grounds for possession

• Secure

• Ground 2A – domestic violence

• Grounds 3 & 4 – deterioration of property/furniture

• Ground 5 – false statement to induce tenancy

• Ground 9 – overcrowding

Less common grounds continued

• Assured

• Ground 13 – deterioration of condition of property

• Ground 14A – domestic violence

• Ground 15 – deterioration of condition of furniture

• Ground 17 – false statement made to induce

Matters that the Court has to consider when

deciding whether to make a possession order

under a discretionary ground

• Whether it is reasonable in the circumstances to:

a) Make a possession order

b) If yes, what type of possession order?

- Outright?

- Suspended on terms?

- Postponed?

Mandatory Types of Claim

• New mandatory ground for possession

• Ground 8 rent claim – assured only

• Section 21 Notice – AST only

• NTQ – non-occupation, abandonment, death of tenant

Mandatory Ground for Possession

• The ASB, Crime & Policing Act Act introduced a new

Section 84A to be inserted into the Housing Act 1985

and a new Ground 7A to be inserted into Part 1,

Schedule 2, Housing Act 1988.

Mandatory Ground for Possession - The Test

• If the Court is satisfied that any of 5 conditions are

met, (and in the case of a secure tenant of a Local

Authority or a Housing Action Trust, the review

requirements have been complied with) it must make

an Order for Possession.

• E.g. breach of injunction, criminal conviction of certain

offences, breach of a CBO, closure order, breach of

statutory abatement notice.

Ground 8 rent claim - assured

• Both at the date of the service of the notice under section 8 of this Act

relating to the proceedings for possession and at the date of the

hearing—

• (a)if rent is payable weekly or fortnightly, at least eight weeks’ rent is

unpaid;

• (b)if rent is payable monthly, at least two months’ rent is unpaid;

• (c)if rent is payable quarterly, at least one quarter’s rent is more than

three months in arrears; and

• (d)if rent is payable yearly, at least three months’ rent is more than three

months in arrears;

• and for the purpose of this ground “rent” means rent lawfully due from

the tenant.

Section 21 Notice - AST

• An AST is a form of assured tenancy

• If AST can seek possession without ground for

possession needing to be proved

Section 21 Notice continued

• Non-fault based ground for possession

• Service of notice – prescribed form

• 2 months’ notice

Notice to Quit

• Cannot be served unless tenancy has lost its

secure/assured status

• NTQ determines the remaining contractual tenancy

• E.g. Abandonment, non-occupation, death of tenant

Notice to Quit continued

• 4 weeks’ notice

• Serve at property and any other known address

• In abandonment/non-occupation case, serve a NOSP

without prejudice too

• In death of tenant case, serve NOSP on Personal

Representatives of the deceased tenant and serve a

copy on Public Trustee

• Savings clause

What the court has to consider when making a

decision on a claim brought under a mandatory

ground/claim

• If ground is made out, order ought to be made

• Concept of proportionality evolved – human rights act

and public law defences

• Very high threshold – exceptional cases

• Whether making an order for possession is a

proportionate means of achieving a legitimate aim

• No halfway house – either you get order or you don’t

and order cannot be suspended

Serving Notice

• Must make sure you get the right notice – very

important and might be fatal to your claim

• N.B Dispensation of requirements can be sought but

should only be as last resort

Preparing the Notice of Seeking Possession

• The Notice of Seeking Possession (NOSP) is a form

prescribed by statute:

– Secure tenancies – Section 83 Housing Act 1985

– Assured tenancies – Section 8 Housing Act 1988 –

prescribed form as from 6 April 2016 under the

Assured Tenancies and Agricultural Occupancies

Regulations 2016

Preparing the Notice of Seeking Possession

• Must ensure it is factually accurate and fully particularised

• Must specify ground for possession in full and particulars of

each ground relied upon

• If relying on Ground 1/12 must set out the clauses of

tenancy agreement breached in full

• Date after which proceedings can be started – check

tenancy agreement

• Ensure NOSP is in correct form

Service of the NOSP

• Must ensure that you give sufficient time for service –

check if you have to give 2 or 4 weeks notice (usual

rule: 4 weeks for secure tenancies, 2 weeks for

assured tenancies but check tenancy agreement).

• Short notice for ASB grounds as long as tenancy

allows it

• Certificate of Service should confirm: date, time and

method of service

Tips

• Ensure that you include all relevant grounds

• If serving NTQ and NOSP together remember to mark

each notice “Without Prejudice”

• Always hand deliver if possible and complete

certificate of service

• Ensure your precedents are up to date

• Dispensation – always as a last resort

• Any questions – ask us!

Other remedies to deal

with a breach of tenancy

Rebecca Brady

Devonshires Solicitors

Mediation

• Useful tool in neighbour disputes

• Get parties around table and talking

• Internal or external

• Requires co-operation from parties

Acceptable Behaviour Contracts

• Tool for anti-social behaviour

• Tenant, occupier, visitor etc.

• First warning

• Can support possession proceedings if behaviour

doesn’t change

Demoted Tenancy

• Tool to tackle anti-social behaviour

• If granted the assured tenancy will be demoted to an

AST for a fixed period

• If any further incidents can follow the procedure for

possession without needing to prove a ground in the

same way as for an AST – NB proportionality

Demotion Order (1)

• Demotion Order which will terminate an assured or secure

tenancy and replace it with a demoted tenancy

• Before issuing proceedings - Notice of Demotion must be

served giving particulars of the conduct in respect of which

the order is sought

• Proceedings will need to be started within 12 months of the

date of service of the Notice

Demotion Order (2)

• When deciding whether to grant an order for a demoted

tenancy the Court must be satisfied that the tenant or the

person residing or visiting the property has engaged in

behaviour which:

– is capable of causing nuisance or annoyance to any

person and

– directly or indirectly relates to or affects the housing

management functions of the landlord

Demotion Order (3)

• The Court must also be satisfied that it is reasonable

to make an order for demoted tenancy

• If no breaches occur within the 12 months the tenancy

will revert to its assured/secure status

Statutory Abatement Notices

• Environmental Protection Act 1980

• Statutory nuisance

• Served by Environmental Health Office

• Abate nuisance

• Breach gives rise to mandatory ground for possession

Community Protection Notice

• Designed to deal with particular ongoing problems or

nuisance that negatively effect the community’s quality

of life by targeting the individuals or businesses

responsible

CPNs (cont.) – The Test

1. Relevant agencies must be reasonably satisfied

conduct is having a detrimental effect of a persistent

or continuing nature on the quality of life of these in

the locality

2. Conduct must be unreasonable

CPNs (cont.) - Content

• Requires a person to stop and take steps to ensure

behaviour does not happen again

• Must be served on a person responsible for the

behaviour

• Can be served by:

- Police

- Council

- Designated person

CPNs (cont.) - Content

• Can include positive requirements, e.g. remedial

works (immediate or designated deadline)

• Can contain prohibitions e.g. not to walk dog off lead

• Can contain requirement to make “reasonable steps”

to achieve specified results

Public Space Protection Order

• Order designed to deal with a particular nuisance or

problem in a particular areas that is detrimental to the

local community’s quality of life.

• It can deal with current and future problems

• Last up to 3 years but can be extended

PSPO – The Test

• Available to Local Authority/Designated body only if:

(i) activity carried out in public space of that authority

had or is likely to have a detrimental affect of the

quality of life of those in the locality and

(ii) effect is/likely to be:

- persistent/continuing

- Unreasonable

- justifies restriction

Criminal Behaviour Orders (CBO)

• Available on conviction for any criminal offence

• Aimed at tackling the most serious and persistent

offenders

• On application by CPS upon conviction or at request

of council/police

• Need inter-agency cooperation

CBO (cont.)

• Replaced ASBO and DBO on conviction

• Available in Youth, Magistrates or Crown Court

• Hearing will be after or at the sentencing hearing of

offence

• Can have prohibitions and requirements.

CBO (cont.)

• Two conditions:

• i) Court satisfied beyond reasonable doubt that

offender has engaged in behaviour that has caused/is

likely to cause harassment, alarm or distress to any

person and

• Ii) Court considers making an order will help prevent

offender engaging in such behaviour

CBO (cont.)

• Can deal with wide range of behaviour

• Minimum 2 years up to indefinite period

• Can vary or discharge

• Breach is criminal offence

- summary fine/6months/both

- indictment – fine/5 years/both

Closure Orders

• Police or Council can close premises being used/likely

to be used to commit nuisance or disorder

• Two stages

(i) Closure Notice

(ii) Closure Order

• Require consultation with appropriate person and

inform the owner/landlord/tenant etc.

Closure Orders (cont.)

• Notice = Short-term = out of Court for up to 48hours

but can’t exclude occupiers

• Test for Notice:

(i) Nuisance to public

(ii) Disorder near premises

• Breach is criminal offence – up to 3months/unlimited

fine

• Can appeal

Closure Orders (cont.)

• Test for Orders:

(i) Disorderly, offensive or criminal behaviour

(ii) Serious nuisance to public

(iii) Disorder near premises

• Can close for up to 6 months and exclude access

• Breach is criminal offence – up to 6 months/unlimited

fine/both

• Can appeal

Dispersal Powers

• Sections 34-40

• Requires a person committing ASB, a crime or

disorder to leave an area for up to 48hours

• Available to Police/PCSO if authorised by inspector

• Test:

(i) Contributing or likely to contribute to members of the

public in the locality being harassed, alarmed or

distressed and

(ii) Necessary to remove/reduce likelihood of

ASB/Crime/Disorder

Dispersal (cont.)

• Must be in writing unless not reasonably practicable

• Must specify the area

• Can determine route and time to leave by

• Can confiscate items

• Age 10+

• N.B. Rights of freedom of expression (article 10) and

assembly (article 11) – need authorisation from senior

officer to ensure rights are not infringed

Any Questions?