Recovering Possession as a Landlord

After a Tenant is Convicted of a Serious Offence

Kiranpreet Minhas-Gill discusses two cases confirming that landlords can rely on mandatory possession grounds for serious tenant offences, even after starting proceedings on discretionary grounds. 

Case Name, reference & Bailii link

Hajan v Major & Burgesses of the London Borough of Brent [2024] EWCA Civ 1260 (23 October 2024)1 BAILII link

Poplar HARCA v Kerr [2023] EW Misc 23 (CC) (26 July 2023), BAILII link.

Summary 

The first case concerns a secure tenancy, brought by Amer Hajan (“Tenant”) against The Mayor & Burgesses of the London Borough of Brent (“Landlord”). 

The second concerns an assured tenancy, brought by Janet Kerr (“Tenant”) against Poplar Housing and Regeneration Limited Community Association (“Landlord”). 

They both raise questions about the procedure in which a landlord must follow in order to recover possession of a dwelling house on the ground of anti-social behaviour resulting in a conviction for a serious offence.  

Hajan v Brent 

Facts 

In March 2010, the Tenant was granted a secure tenancy of a one-bedroom flat, therefore protected by the Housing Act 1985. In June 2022, the Tenant was arrested after threatening staff and causing damage at a Civic Centre, which he pled guilty to an offence under Section 1 of the Criminal Damage Act 1971 and was sentenced in September to 200 hours community service and 10 days rehabilitation activity.  

In November, the Landlord served notice seeking possession of the flat, as required by Section 83 of the 1985 Act under grounds in schedule 2: 

• Ground 1: arrears of rent or breach of tenancy obligations  

• Ground 2: anti-social behaviour  

The notice relied on noise nuisance, drug dealing, attempted arson, and possession of a weapon, as well as the conviction above. On these grounds the court can make an order for possession if it considers it reasonable to do so. Proceedings were issued in December. 

After receiving the certificate of the Tenant’s conviction, in May 2023, the Landlord served a further notice seeking possession on the ground of anti-social behaviour. This time they relied on the mandatory ground for possession in Section 84A in the 1985 Act. It also informed the Tenant of his right to seek a review of the Landlord’s decision, but he did not. 

Issues 

Whether a landlord who serves a notice can apply to amend the existing proceedings to allow reliance on that ground, or whether the Landlord should begin fresh proceedings. As the notice should specify when proceedings will begin, but the proceedings have already begun so this requirement cannot be complied with. 

This is because under Section 83ZA if the 1985 Act the date must be specified for when the proceedings will begin, and Section 83A says the court should not entertain proceedings unless they are after the specified date. 

First Instance  

When a matter of this type comes to the court, the court must proceed in three stages, to consider whether:  

1. The grounds or grounds relied on have been established  
2. It is reasonable to make an order for possession  
3. To exercise the power to postpone, suspend or stay the order or to do so on terms

The Tenant argued the Landlord could not rely on the mandatory ground because the proceedings were not in process after the expiry of the S83ZA notice, which is required.  

The Landlord argued that the application to amend should be included within the meaning of “proceedings” and “begun.”  

Decision  

In July 2023, the court granted permission to amend the Particulars of Claim to the mandatory ground for possession. The Tenant sought permission to appeal against this order, which was granted, to be heard alongside the second case below. 

Decision on appeal 

Dismissed. This case confirmed Landlord’s may amend claims to rely on the mandatory ground of possession in the course of ongoing proceedings. 

Poplar HARCA v Kerr 

Facts 

Kerr became the Tenant of the Landlord following a stock transfer in May 2004, with an assured tenancy protected by the Housing Act 1988. 

After falling into arrears with rent, the Landlord began possession proceedings against her. In February 2017, the court gave judgment for £2,512.35 in respect of rent arrears for the Landlord and made an order for possession. This specified that the order was not to be enforced so long as the Tenant pays the rent arrears via instalments. 

In August 2020, a group of men forced their way into the Tenant’s home and threatened violence. Whilst trying to scare off the intruders, the Tenant’s son (who lived with her as her carer) fired an imitation firearm and was charged with possession of an imitation firearm with intent to cause violence to which he pleaded guilty and was sentenced to 14 months imprisonment.  

Following the offence, the Landlord decided to seek possession of the house on the mandatory ground for possession set out in 7A, Schedule 2 of the 1988 Act. Notice was served in February 2021 and gave particulars of the offence and how seriously the Landlord took this kind of behaviour.  

The Tenant took up her right to a review of the Landlord’s decision, but a review panel upheld the Landlord’s decision. After this, the Landlord applied for variation to the suspended order to an outright possession order.  

Issues 

Whether the court has the power to vary a suspended order for possession originally made on a discretionary ground by making an unconditional order on a mandatory ground  

This is under Section 9 of the 1988 Act or under an implied “liberty to apply”.  

Decision  

In February 2022, it came before the court and the order was varied to an outright order, which meant possession was to be given on or before March 2022. This was despite the Tenant’s argument that the judge had no jurisdiction to make the order: but Section 9 of the 1988 gave this power.  

This was then given permission for appeal. 

First Instance  

An assured tenancy cannot be brought to an end by the Landlord except by obtaining an order for possession from the court and executing it. Grounds on which possession may be sought are those in sections 7 and 21 of the 1988 Act. Section 21 does not arise in these.  

Decision on appeal 

Dismissed. The jurisdiction to make the order was decided to not be in play under the appeal and instead there was a “liberty to apply” for the court. The Landlord was entitled to vary a conditional or suspended possession order made on a discretionary ground, by replacing it with an unconditional order on a mandatory ground.  

At paragraph 38, the court have said, what is the purpose of the mandatory ground (both 1985 and 1988 Act)?  

It is to expedite the eviction of the Landlord’s most anti-social tenants to bring faster relief to victims. It offers better protection for the victims, saves landlords costs and frees up court resources and time. The provisions are designed to speed up the possession process in cases where anti-social behaviour or criminality has already been proven by another court. 

Therefore, these cases demonstrate the courts’ common-sense approach and their efforts in promoting the reasoning why certain legislation has been brought into place and how in practice it should then be exercised.