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Possession orders

This page deals with a number of matters that are relevant to claims for possession based upon anti-social behaviour:
  • Adjourning the claim on an undertaking.
  • Ground 14.
  • The use of hearsay evidence in possession claims.
  • Suspended or outright possession order - what order should the court make? Lots of cases!

Claim adjourned on undertaking

Hastoe Housing Association Ltd v Ellis
[2007] EWCA 1238

The housing association brought possession proceedings based on the tenant's nuisance. There were negotiations which resulted in the parties asking the court to make an order in which the defendant gave an undertaking in relation to the nuisance and which continued as follows:
    "And the Court accepted her undertaking ... the Court ordered that the undertaking will remain in force until 4:00pm on 17 May 2009 or further order and that the possession proceedings be adjourned generally with liberty to restore and if not restored by 18 May 2009 will be struck out".
The trial judge refused to make an order sought failing to appreciate that the adjournment sought was pursuant to a compromise of the action rather than a simple adjournment of the trial for two years! The Court of Appeal held that the judge should have made the order which was a perfectly proper order to make and which was permitted by the terms of s 9 of the Housing Act 1988, the relevant parts of which provide as follows:
    "(1) Subject to subsection (6) below, the court may adjourn for such period or periods as it thinks fit proceedings for possession of a dwelling-house let on an assured tenancy."

Ground 14

Conviction of offence - committed prior to tenancy

Raglan Housing Association Ltd v Fairclough
[2007] EWCA Civ 1087.

Ground 14

Ground 14(b)(ii)of Schedule 2 to the Housing Act 1988 provides a discretionary ground upon which the court may order possession against an assured tenant if the tenant (or a person residing in or visiting the dwelling-house) has been convicted of "an indictable offence committed in, or in the locality of, the dwelling-house". The Court of Appeal held that a possession order can be made on this Ground even where the offence was committed prior to the commencement of his tenancy.

Facts

The tenant was convicted on fifteen counts of making indecent photographs of children by downloading them on his computer from the internet and a further four counts of possessing indecent photographs of children; and received a prison sentence. The offences were committed when he was the tenant of one property in the locality but he was convicted after he was transferred to and became the tenant of a neighbouring property; ie the offence was committed prior to the commencement of the current tenancy.

Offence committed during currency of tenancy

The tenant argued that Ground 14(b)(ii) only applied to convictions for offences committed during the currency of the tenancy agreement and does not extend to convictions for offences committed before the tenancy began. The argument was rejected.

Moore-Bick LJ at paras 17 and 19:
    "Unfortunately, given that tenancies of this kind are capable of being transferred from one family member to another, it is not beyond the bounds of possibility that a person who has become the tenant might be convicted of using the premises for an immoral or illegal purpose at a time before he became the tenant. I am unable to accept, therefore, that paragraph (b)(i) is limited in the way suggested by Mr. Egleton ..there is no reason to think that Parliament intended to restrict that paragraph to offences committed during the currency of the tenancy. A tenant who is convicted of supplying illegal drugs or of burgling his neighbours' houses poses no less of a continuing threat if the offences were committed before he became a tenant than he would if they had been committed afterwards."
Conviction during currency of tenancy

There was a further point. The judge at first instance held that paragraph (b) is not satisfied unless the conviction itself (though not the facts on which it was based) occurred during the currency of the tenancy. Moore-Bick LJ thought the trial judge was probably right (para 19). Chadwick LJ on the other hand took a different view:
    "I am not persuaded that the judge was probably correct to take the view that paragraph (b) of Ground 14 is not available (under either limb) unless the conviction itself occurred during the currency of the tenancy.... But, as Lord Justice Moore-Bick has observed, it is unnecessary to decide that question for the purposes of this appeal; and I do not do so.

Restriction on use of Ground 14 by terms of tenancy

Pollards Hill Housing Association v Marsh
[2002] EWCA Civ 199

Ground 14 of the HA 1988 provides a ground of possession (in respect of assured tenancies) where the tenant or a person residing in or visiting the dwelling house has been guilty of conduct "causing or likely to cause a nuisance or has been convicted of .. an arrestable offence committed in, or in the locality of, the dwellinghouse".

However, the tenancy agreement in this case stated: "The following are the only grounds and circumstances in which the association will serve notice and seek to recover possession." One of those circumstances was stated in the following terms: "You or anyone living in or visiting the premises have been guilty of conduct causing or likely to cause a nuisance .. or you have been convicted of using the premises for immoral or illegal purposes or of an arrestable offence carried out at or in the locality of the premises (Ground 14)."

The tenant's partner was convicted of a drugs offence, committed at the property.

The Court of Appeal held that there was a contractual intention to restrict the rights to apply for possession under Ground 14.
    "One could see that a party to a contract of this kind might take the view that it was wider than was necessary and be prepared to limit the use that it could make of that ground."
The landlord could not therefore rely upon Ground 14 as set out in the statute.


Hearsay evidence

Solon South West Housing Association Ltd v James
[2004] EWCA Civ 1847

Claim for possession where L relied on both oral and hearsay evidence. The judge granted an outright order in a serious case where the family had been terrorising the neighbourhood. The criticism, on appeal, that the judge was wrong to admit the hearsay evidence on the ground that no adequate reason was given for non-attendance of the relevant witness at trial and so that its admission constituted a breach of Article 6 of the ECHR was roundly rejected. The reason for not adducing live evidence from the hearsay witnesses was their fear of reprisals. That was clearly a reason that the judge had been entitled to put into the balance in deciding what weight to give to the evidence. In any event, the judge had stated that he took the live evidence as a primary concern and that the hearsay evidence had been consistent with or fitted the pattern of the live evidence.


Suspended / outright possession orders

Drug taking by visitors

Stonebridge Housing Action Trust v Gabbidon
[2002] All ER (D) 326, Ch D; TLR, 21 November 2002.

T was in breach of a suspended possession order in that there were further rent arrears. T had also allowed the premises to be used for taking drugs. These were serious matters that caused a nuisance. In Bristol CC v Mousah [1997] EWCA Civ 1081 it had been held that where the premises had been used for a serious criminal offence it would be only in exceptional circumstances that court would not make an order for possession. However, the judge refused to make an immediate order for possession because he was satisfied that T had not been involved personally in drug dealing and that she had a young child. The order was suspended. Ls appeal was dismissed.

Human rights - impact of the convention on decision making

Sheffield City Council v Shaw
[2007] EWCA Civ 42

In London Borough of Lambeth v Howard Sedley LJ had stated that in considering whether or not make an outright or suspended order for possession, the court (having regard to article 8 of the European Convention Human Rights) should approach the matter in a structured way as follows:
    "The question, therefore, is whether the interference is necessary in a democratic society for the protection of the rights and freedoms of others. Necessary in a democratic society does not mean indispensable; nor does it mean desirable. Convention jurisprudence has decided that it means:
      (a) that the reasons given to justify the interference must be relevant and sufficient;
      (b) that the interference must correspond to a pressing social need; and
      (c) that the interference must be proportionate to the aim pursued..."
In this case Sedley J reminded the county courts of what he said in that case in the following terms:
    "I would add only that it seems to me to be a pity that neither in the county court nor before us has the case has been argued in terms of proportionality. As this court accepted in Howard, a court deciding whether it is reasonable to make an outright or a suspended possession order under statutory powers is ordinarily entering the territory of article 8 of the European Convention on Human Rights, because the state's respect for the defendant's home is engaged. If so, article 8(2) limits legitimate interference to measures which are not only lawful but are 'necessary in a democratic society', a phrase which the European Court of Human Rights interprets as meaning proportionate. This calls up the kind of structured analysis which is described in paragraphs 33 and 34 of my judgment in Howard. I will not repeat it. I will simply reiterate that it is not a formal exercise. It is a practical and principled way of reaching a self-explanatory decision about reasonableness. Such a structured decision is of help both to the parties, who are entitled to know why the judge considers the course he is taking to be the most reasonable one, and to any appellate court which has to decide whether the judge has gone beyond what the law permits."

Mother and son

New Charter Housing (North) Ltd v Ashcroft
[2004] EWCA Civ 310

Secure tenancy. Nuisance caused by 17 year old son of the tenant, his mother. The boy was a considerable nuisance to neighbours over a long period of time and an ASBO had been made against him. He was in breach of the order and was made subject of a detention and training order. The judge made a suspended order for possession to give the mother an opportunity to curb the sons behaviour on his release. L appealed. CA lifted the suspension. On the facts undue weight had been given to the mothers interest over that of the neighbours. She herself had threatened the neighbours and there was no reason to suppose she would or could curb her sons behaviour.

Mother and son again

Manchester City Council v Higgins
[2005] EWCA Civ 1423

When a court is deciding whether or not to make an order for possession in a nuisance case it must consider four issues (1) Is the ground made out? (2) Is it reasonable to make the order? (3) Should the order be suspended? (4) If so, on what conditions? In deciding whether or not it is reasonable to make the order the judge must of course have regard to all relevant factors. However, the Anti-social Behaviour Act 2003 amended the law both in respect of secure and assured tenancies so as to require the court to consider in particular the following factors when deciding whether or not it is reasonable to make the order:
  • The effect of the nuisance or annoyance has had on persons other than the person against whom the order is sought;
  • Any continuing effect the nuisance or annoyance is likely to have on such persons;
  • The effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.
(see s85A of the Housing Act 1985 and s9A of the 1988 Act each introduced by s16 of the 2003 Act)

In this case the judge thought it reasonable to make the order but suspended it for 18 months on conditions. The nuisance was caused not by the tenant but by her son who was completely out of control and who, in particular, had terrorised a neighbour who was a widow with three mentally handicapped children. The mother had shown no remorse and seemed to be completely unappreciative of the effect her sons behaviour was having on her neighbours. The Court of Appeal held on the facts that the judge was wrong to suspend the order for possession, even though it meant that the mother and her three children (including a child suffering from a whole in the heart) lost possession.

It is of course unusual for the Court of Appeal to interfere with a decision of the judge to suspend, which is based on discretion. However, this does reflect Government policy, which is to take a tough line on anti-social behaviour. In referring to the new duty created by s16 of the 2003 Act (on reasonableness) Ward LJ read a quote from another recent decision, Moat Housing Group v Harris:
    This section clearly owes its origin to a concern on Parliaments part that judges were not paying sufficient attention to these particular matters when deciding whether or not it was reasonable to make a possession order.
Ward LJ went on to state:
    .. it is a reminder that such behaviour, which is almost always bound to be a nuisance and annoyance to those on unruly estates is not to be tolerated whenever it has a deleterious impact on others. It is to be observed that the focus of this section is on the effect the nuisance or annoyance has on others.
On deciding whether or not to suspend the order Ward LJ said:
    .. since the court will already have found that it is reasonable to make a possession order, the question of whether or not to suspend its execution must be very much a question of the future.
There is no point suspending an order if the inevitable outcome is a breach. So that: Previous unheeded warnings point one way: genuine remorse the other. And in this case:
    .. the behaviour of the defendant herself and her children, especially James, was quite intolerable. Absent any expression of remorse or any well founded expectation of improvement it was disproportionate not to make an immediate possession order. The defendant had forfeited her right to respect for her home."
Gage LJ added on the question of suspension:
    .. at the second stage there will be a greater focus on the future rather than the past. In other words, when deciding whether or not to suspend the order the court will amongst other things be concerned to devise the best method of protecting the needs of neighbours against the re-occurrence of the anti-social behaviour which gave rise to the order for possession being made. In some cases, of which in my opinion this is one, an ASBO will provide no real protection for neighbours. In other cases it may well provide adequate protection. Each case must be determined on its own facts.

Mother and son again - effect of ASBO - permission to apply for warrant

Knowsley Housing Trust v McMullen
[2006] EWCA Civ 539.

This is another case where the nuisance was caused by the son of the tenant, who terrorised the neighbourhood. The mother (tenant) had an IQ of 63, could not read or write beyond the standard of a nine year old, was an "immature and vulnerable person who lacks assertiveness skills" and who was "unable to disclipline or control the actions of her son" who was in his late teens and "of tall and large build". She was found to be a "disabled person" within the meaning of s22(3)(c) of the Disability Discrimination Act 1995. However, the judge found as a fact that the tenant's inability to control the son was not related to her disability. He decided that it was reasonable to make an order for possession and suspended the order on terms that there were no further acts of nuisance on the part of the tenant or her son. The CA upheld the order but with one modification (relating to notice of breach of terms of suspension) that will be dealt with below. There are three particular points that arise out of the case.

Ability to control the son

In an earlier case (Newcastle City Council v Morrison (2000) 32 HLR 891 Sedley J said: "It may very well be unreasonable to make even a suspended order against somebody who will be powerless to rectify the situation, and it will almost certainly be unreasonable to make an outright order against such a person". (GW's italics). Those acting for tenants have frequently latched onto the second part of the sentence in seeking to prevent outright orders. However, this part of the sentence has now been disapproved of by Neuberger LJ at para 28:
    "I regard the second part of the observation as going further than is justified by principle or authority. It appears to me wrong in principle to rule out an outright order for possession in a case when the 1988 Act clearly contemplates such an order provided that it is reasonable, especially given that reasonableness turns on the particular facts of each case"
He went on to state at paras 32 and 33:
    "In these circumstances, I reject the contention that, in this case, an order for possession, whether outright or suspended, could, or even should, not have been made as a matter of principle, simply because the tenant could not control the activities of the person in her household responsible for the nuisance. .It seems to me that the fact that the tenant cannot control the nuisance-maker is a factor which would normally assist the tenant in resisting an order for possession in relation to past breaches, especially where she has done her best to stop the nuisance. However, unless the nuisance-maker has vacated, or will shortly vacate, the property, it seems to me to be a factor which may often assist the landlord if he is asking the court to make an outright order for possession or to suspend the order for possession on terms which relate to the behaviour of the nuisance-maker." (GW's emphasis)
Effect of the ASBO

Amongst various other measures that had been taken against him, the son was subject to an ASBO. The tenant's counsel argued that the son's behaviour was effectively controlled by the ASBO so that the judge should not have made the order that he did make. The argument was rejected. A landlord can choose between his different remedies and the mere fact that there is an ASBO in force does not of itself prevent an order from being made. However, its existence is not totally irrelevant and may affect the order made. Neuberger LJ at paras 37 and :
    "I can see no intrinsic reason why the existence of an ASBO against the person responsible for the nuisance should prevent the making of an order for possession, whether outright or suspended, based on ground 14. Indeed, it seems to me wrong that there should be some sort of rule or practice that a landlord, who has the benefit of a covenant against nuisance and of a statutory right to possession (if it is established to be reasonable) under ground 14, should be forced to rely on enforcing an ASBO, rather than pursuing its own rights. The two orders are conceptually quite different; further, the order for possession would survive the revocation of the ASBO, and the ASBO would survive notwithstanding the execution, or the reversal, of the order for possession. .. However, I accept that .. the existence of an ASBO can be a relevant matter when the court is deciding whether it is reasonable to make an order for possession, and whether to suspend it."
Order requiring permission to apply for warrant

Where an order for possession in a nuisance case is suspended upon condition that no further nuisance takes place, arguments can often arise subsequently as to whether or not the condition has been breached. One method of ensuring that any such dispute has been dealt with before the landlord applies for a warrant has been to insert a term in the order that the landlord shall not apply for the warrant without first obtaining the permission of the court. However, the CA has now effectively disapproved of this practice - at least in most cases. There is nothing "which forbids a suspended order for possession in any case from requiring the claimant to apply for permission from the court before obtaining a warrant of possession. Each case must turn on its own facts." (Neuberger LJ at para 49). However, it should not normally happen. Neuberger LJ at para 65:
    "Normally, a suspended order for possession should not include a term that the landlord should have to apply to the court for permission before applying for a warrant. However, as I have emphasised more than once, the appropriate order in a particular case must depend on the facts of that case, and, accordingly, in some exceptional cases, such a term may be justified."
In the present case, there were exceptional circumstances requiring such a provision, in particular the circumstances surrounding the tenant's disability

Suspension not injunction - loss of right to buy

Norwich City Council v Famuyiwa
[2004] EWCA Civ 1770.

Claim for possession by council against one of its tenants. The judge accepted Cs case that the tenant's conduct was causing nuisance or annoyance to, and constituted harassment of, her neighbours. However, he reached the conclusion that it would not be reasonable to make an order for possession. He therefore dismissed the claim. He thought that a suspended order would not in practice control the tenants anti-social behaviour. However, he then went on to grant an injunction restraining the tenant from insulting, abusing, threatening or harassing any person in the neighbourhood.

Held: It was not right in principle to refuse an order for possession on the grounds that such an order, suspended on conditions, would provide no basis, in practice, for the control of the tenant's anti-social behaviour. He overlooked the possibility that, by postponing the date for possession upon appropriate conditions, the situation could be controlled by the court.

One of the factors that influenced the judge was the loss of the right to buy if an order were made. However, on appeal Jacob LJ made the following points:
    The judge was clearly influenced by the consideration that if a possession order were made the tenant would lose her right to buy. He overlooked the fact that it is possible for the possession order to be discharged or rescinded under section 85(4). But if a suspended order was made her right to buy will also go into suspension. If she behaved she would in due course be able to get the possession order removed and proceed with her right to buy.

Tenants partner, who caused the trouble, had gone - order not suspended

London Quadrant Housing Trust v Root
[2005] EWCA Civ 43

C was a housing trust. D1 was one of its tenants in a house on a small estate in a quiet residential neighbourhood. D2 was her partner. C received many complaints from neighbours about the behaviour of D2, who ran a business repairing and scrapping cars business from the premises in breach of the agreement. The housing manager was unable to carry out her work on the property for fear of D2. There were also complaints about the state of the outside of the property which was in a terrible mess as a result of D2s activities. The local authority obtained an interim anti-social behaviour order against D2, who then left the property.

The judge made a final order for possession even though D2 was no longer at the property. He said the court had to balance the needs of D1 and her children against the very considerable hardships to which the neighbours had been exposed. However sympathetic he might be to D1 the neighbours and Cs employees had suffered enough. There was a long waiting list of those who wanted this desirable house and would look after it, and no doubt integrate with the rest of the community. D1 appealed arguing that the possession order should have been suspended. The appeal was dismissed. Brooke LJ:
    "In my judgment, this is a case in which it would not be open to this court to say that this very experienced judge had been wrong in forming the view that it was inappropriate to suspend the possession order. This was a very bad case, and although it was [D2] who caused the case to be so very bad and that to some extent [D1] would have been influenced by his character - and indeed the judge found that she had been subjected to violence - there is a limit to which the courts can be willing to tolerate behaviour of this kind out of the kindness of their hearts to a woman and three children when their neighbours have suffered as much as they have on this occasion, and when right up to the very week before the hearing [D1] was still refusing to allow the landlords in, as they were fully entitled to enter, to inspect the inside of the premises."

Drug dealing near the property

Knowsley Housing Trust v Prescott
[2009] EWHC 924 (QB)

Summary

A postponed possession order was inappropriate when the tenant had been convicted of drug dealing near the property and there was no evidence that his behaviour would abate. An outright order should have been made.

Facts

H and W were assured tenants. H was convicted of dealing drugs and was sentenced to eight years. The dealing was industrial and national and the premises used were about half a mile from the dwelling. The landlord sought possession both on the grounds of arrears and on the fact that H had been convicted of an offence "committed in, or in the locality of, the dwelling house" (Ground 14, Schedule 2, Housing Act 1988).

At the hearing, the landlord tendered its witnesses but their evidence was not challenged. H did not attend and was not represented. W attended and had filed witness evidence but chose not to give oral evidence.

The judge refused to make an outright order for possession. He stated that H had already been punished for his crime and to a certain extent so had W. He also noted that W had not been directly involved in criminal activity. He made a postponed order on the basis that the tenants paid their current rent, paid something towards the arrears and did not use their home for drug dealing.

Appeal

It was recognised that the decision to grant a postponed or an outright order was a matter of discretion for the judge. His decision should only be interfered with if it was either based on an error of principle or was obviously wrong (Bracknell Forest Borough Council v Green [2009] EWCA Civ 238 ). However, the landlord's appeal was allowed. Blair J:
    “In my respectful opinion, the learned judge gave too little weight to the scale of Mr. Prescott’s drug dealing, gave too much weight to the fact that it was not happening at the house itself (when it was happening in the near locality), and did not direct himself in accordance with the principle that so far as postponement of possession in such cases is concerned, the court is looking to the future, and thereby erred in principle. Before the judge could contemplate postponing the possession order, there had to be cogent evidence that the course of conduct which gave rise to the convictions would not be repeated, and there was none.” (para 27)


Burden on tenant to provide evidence to show why it should be suspended

Birmingham City Council v Ashton
[2012] EWCA Civ 1557

Summary

When considering whether to suspend an order for possession on the basis of anti-social behaviour the onus is on the party who seeks to have the order suspended to provide sufficient evidence to show that this behaviour will not recur or will be unlikely to do so.

Facts

T was a secure tenant of L. T was sentenced to a community order for offences at the property for affray and possession of an offensive weapon. One condition of his sentence was that he was prevented from returning to the property for three years. Another was that he underwent mental health treatment.

L served a notice seeking possession relying on grounds (1) and (2) of Schedule 2 to the Housing Act 1985 and commenced possession proceedings at the end of that month. In addition to the facts which gave rise to the conviction L relied on three earlier incidents which also resulted in convictions and general allegations of nuisance and annoyance. At trial, L only relied on the incidents giving rise to the convictions some of which had directly involved and been aimed at a neighbour.

The trial judge was satisfied that it was reasonable to make a possession order, but suspended that order on the basis that there was reason to believe that the behaviour would not be repeated. This was based on a number of factors including A’s remorse, history and medical reports. However, there was limited evidence before the judge on these matters and most came from A in his evidence.

L appealed the decision to suspend the order. L argued that the judge had erred in not taking into account (or not taking properly into account) the matters set out in s85A of the Housing Act 1985, and in particular the impact and continuing impact that the nuisance has had on neighbours and the likely effect on them should it be repeated.

Decision

The Court of Appeal allowed the appeal and remitted the case back for further consideration. The Court did not consider that the judge had sufficient evidence before him to suspend the order for possession. Treacy LJ said:
    “the onus should be on the party who seeks to have the benefit of suspension of a possession order, (which by definition the judge has already found it was reasonable in the circumstances to make), to provide cogent evidence to show that what can generally be characterised as anti-social behaviour will not recur, or will be unlikely to do so”.



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