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Posted 20 January 2015
by Simon Sanger-Anderson

Tozers housing newsletter – winter 2015

Anti-Social Behaviour, Crime and Policing Act 2014

The provisions about mandatory possession, Community Protection Notices and the Community Trigger are now in force. Statutory guidance on these tools can be found here.

The changes to Anti-Social Behaviour Injunctions will not now come into force until 2015.

Mandatory possession – convicted of a serious crime

The mandatory ground which appears to be of most interest to landlords is “Condition 1”, that is, that the tenant, a person living with the tenant or a visitor has been convicted of a serious crime in the locality of the dwelling house.

What is classed as a serious crime is listed in Schedule 3 of the Act here, and includes threats to kill, GBH, ABH and some (but not many) drug offences. The offence and conviction must have been committed after 20 October 2014 so we may not see many of these possession cases for some time to come.

Practice points

  • Look at the offences set out in the list of “serious crimes” and keep them in mind for the future. The police will sometimes tell you if a tenant has been convicted of a serious crime but not necessarily a visitor. The local papers often carry summaries of recent criminal cases which can be found via a Google search. Also, the web service “InCourts Daily” has a search facility so you can check to see if someone has been in a criminal court in the past 4 years. You may need to do a little more digging to find out the offence and whether there was a conviction but this is a good place to start.
  • Remember that the ground covers visitors as well as tenants but the crime must have been committed in the locality or against someone who lives in the locality or a member of staff.
  • If there is a conviction, write to the court where the person was convicted and ask for a “Certificate of Conviction”. There may be a charge but this is often overlooked by court staff.
  • There is no accelerated procedure for these types of possession claims and they cannot be done on line yet but you can do a paper claim (using N5 and N119) and submit it to your nearest court (see below) even if that is not the local court of the tenant.
  • On a slightly different note, the Community Trigger can be invoked by anyone affected by anti-social behaviour. If you are not satisfied with the response of social services, for example, you, as someone affected, could invoke the community trigger if you have made at least 3 complaints to them. It will do little for inter-agency relationships (and you will need to be sure that you have followed your own policies and procedures) but it will result in a review of which agency has done what and the community trigger panel can make recommendations.

Mandatory possession – statutory review procedure

Regulations have now come in setting out the review procedure for secure tenants. This is the procedure landlords must use when they decide to serve a notice on a secure tenant based on one of the new mandatory grounds. It essentially gives the tenant to right to ask for a review of the decision to serve the notice. There is no equivalent procedure for assured tenants but we highly recommend that the secure tenancy review procedure is followed for assured tenants. The regulation can be found here.

We recommend that whenever a landlord decides to serve a notice on a mandatory ground (including these new mandatory grounds, section 21, grounds 7 and 8 and a Notice to Quit), they carry out a proportionality assessment to show that the eviction meets a legitimate aim and is a proportionate means of achieving that aim.

Practice points

Social landlords should review their current review arrangements and amend if necessary to incorporate the process set out in these new regulations.

Joint tenancy can be ended by just one of the joint tenants.

In 1992 the case of Hammersmith & Fulham LBC v Monk established that a periodic tenancy held by joint tenants may be validly brought to an end by only one of the joint tenants serving a Notice to Quit. The Human Rights Act was enacted in 1998 and provided that everyone had a right to respect for their home and that right could not be interfered with unless it was a proportionate means of achieving a legitimate aim.

In this latest case of Sims v Dacorum Borough Council 2014, Mr Sims brought a challenge to the court on the basis that the “Monk” case was now wrong given his right to respect for his home under the Human Rights Act.

Having lost at first instance he appealed, but the Court of Appeal found that it was lawful and proportion to evict him and that it was not irrational or unreasonable so as to offend his right to the enjoyment of his property. The Judge stated that although for a tenant in Mr Sims position ‘Monk’ was harsh it was inevitably the case that whenever one of the tenants of a joint tenancy serves a notice to quit someone’s’ interest in the tenancy has to suffer.

Practice points

  • This issue frequently arises on relationship breakdown. Particularly where one joint tenant has left because of domestic abuse.
  • A notice to quit given by one joint tenant terminates the tenancy.
  • The notice to quit must be valid to avoid costly challenges. Always check and ask for a valid notice. A valid notice must:-
  • By in writing
  • Be for at least 4 weeks
  • Comply with any additional requirements set out in the tenancy agreement.
  • You need not serve another notice on the remaining tenant at the end of the notice period but must still obtain a possession order. When making the decision to start possession proceedings, you should carry out a proportionality assessment on the remaining tenant before you start.
  • Fixed term tenancies cannot be ended in this way – all parties need to agree in writing (preferably by deed) that the tenancy can come to an end
  • You as landlord should not encourage one joint tenant to end the tenancy by giving a notice to quit. You can advise the tenant that this is an option but that it will end the tenancy for both tenants and let them make the decision. You should not, without a very good reason, encourage one tenant to end the tenancy with a view giving that tenant a sole tenancy of the same property. There may, however, be situations where it would be justified to do this, for example, where the absent joint tenant has not been seen or heard for many years.
  • The tenant who wishes to leave should be encouraged to take advice – from a solicitor, preferably, but if that is not available then from the local authority housing options.

The establishment of a single County Court

The County Court now no longer has the geographical jurisdiction boundaries of county court and there is now one County Court. County Court business will take place at County Court hearing centres. These hearing centres will correspond to the locations of the current county courts.

When drafting documents where a County Court was referred to this should now be replaced by ‘The County Court’. For example when filing a possession claim in Exeter the wording on the court papers should read, ‘The County Court at Exeter’ rather than ‘Exeter County Court’. Probably the most noteworthy change affecting social landlords is that Possession Claims (under Civil Procedure Rules 55) and applications for injunctions (CPR 65) may be started in any County Court hearing centre. Following issue of the claim or application, the case will be transferred to the hearing centre which deals with that geographical area. Normally, the claim will be sent as normal to the hearing centre closest to the Defendant/Property to avoid any delay due to the papers being transferred.   However where there is urgency to the application or claim, such as in an ex-parte ASBI the application can be applied for at the closest Court to the applicant and then the matter transferred to the correct hearing centre for the return hearing.

This is a welcome change as it means that housing officers and housing solicitors covering vast geographic areas can apply for an injunction at their nearest court and arrange service of the application much more easily.

What the team has been up to

Sarah has been delivery training on the Care Act as well as the new ASB, Crime and Policing Act. Sarah has also been running her own mixture of housing cases including leasehold disputes, failed succession claims and defending unlawful eviction and disability discrimination claims.

Jenny has been busy with her disrepair and ASB cases with the usual bag of injunctions, possession claims and applications to stay warrants. She is expecting to see a resurgence in popularity of seeking demoted possession orders now that Legal Aid funding is no longer available to defend these type of cases.

Nicola has been assisting Sarah and Jenny and running her own possession and injunction claims. Nicola recently obtained a perpetual gas access injunction for a client who had experienced difficulties year after year in obtaining access to a particular tenant’s property to carry out the gas safety inspection. The injunction terms contain a provision that the landlord can, if access is not given within 7 days of a written request, force access to the property.

Further advice

Please contact our housing team at Broadwalk House, Southernhay West, Exeter EX1 1UA call: 01392 207020 or email: has@tozers.co.uk

 

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About the author

Simon Sanger-Anderson

Partner

Partner and solicitor within the employment team, Simon also leads the firm's cross departmental Social Housing Practice Group