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Problem Tenants: What can a private landlord do?

From recent press coverage, one might be misled into thinking that the problem of anti- social tenants is only encountered by local authorities and registered social landlords. But, it is also the case that private landlords have had to deal with nuisance tenants. This article outlines some of the ways in which a private landlord can tackle this problem.

Many private sector landlords grant assured shorthold tenancies which provide a limited security of tenure to the tenant. In order to obtain possession, all the landlord is required to do is serve a notice requiring possession (section 21(1) and (4) of the Housing Act 1988). There is no need to give reasons for seeking possession and the court must order possession if the notice requirements are met. However, there is a downside if the landlord wants to evict a problem tenant as quickly as possible. The landlord is required to give at least 2 months notice (s.21(1) of the Housing Act 1988) and the court will not be able to order possession until after the first six months of the tenancy (s.21(5) of the Housing Act 1988).

One way of overcoming this problem is by seeking possession on one of the grounds in Schedule 2 of the Housing Act 1988 in the same way as a ‘fully assured tenant’. There are two grounds which are relevant in cases of anti- social behaviour namely, breach of tenancy agreement (Ground 12 of Schedule 2 to the Housing Act 1988) and nuisance or criminal conduct (Ground 14 of Schedule 2 to the Housing Act 1988). Under Ground 12, it is necessary to consider the wording of the terms of the agreement to ascertain whether there has been a breach. Ground 12 can be particularly useful where the tenancy agreement specifies conduct which is considered to be anti- social although it will not be sufficient to include a term prohibiting the tenant from doing anything which in the landlord’s opinion might be or become a nuisance: Camden LBC v McBride (1999) 1 C.L. 284, CC. The county court held in that case that the term was unenforceable and unfair under the Unfair Contract terms in Consumer Contract Regulations 1994, Reg.4 because the question of its breach was to be determined subjectively by the landlord .

Under the first limb of Ground 14 (as amended by the Housing Act 1996) the landlord can seek possession “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 annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality”. The second limb of ground 14 provides a further ground for possession “where the tenant or a person residing in or visiting the dwelling- house has been convicted of using the dwelling- house or allowing it to be used for immoral or illegal purposes or an arrestable offence committed in, or in the locality of, the dwelling house”. The usefulness of Ground 14 is that it is that the tenant who will be liable even if the nuisance was caused by a mere visitor to the property. Thus, the ground will be applicable where family members use the dwelling- house as a gathering- point, or catalyst, for others who actually cause the nuisance (but do not live with the tenant).

Once the grounds have been made out, the court is required to consider whether it would be reasonable to order possession and if necessary, whether it would be reasonable to suspend or postpone possession ( s.7(4) of the Housing Act 1988 and West Kent Housing Association v. Davies (1998) 31 H.L.R. 415, CA). In considering whether it is reasonable to make an order for possession, “the duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing…in a broad, common sense way …giving weight as he thinks right to the various factors in the situation” (per Lord Greene M.R. in Cumming v Danson [1942] 2 All E.R. 653, CA at 655). It is at this stage that the extent of personal fault is relevant to the issue of whether or not it is reasonable to make a possession order and if so, whether to suspend it (Portsmouth C.C. v Bryant (2000) 32 H.L.R. 906, CA).

In order to obtain possession, the landlord needs to serve a notice seeking possession in the prescribed form (s.8 of the Housing Act 1988 and Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997 S.I. 1997 No.194) specifying the grounds and particulars of nuisance. The benefit of going under Ground 14 is that proceedings can be commenced immediately on service of the notice (s.8(4) of the Housing Act 1988) unlike the assured shorthold ground.

Another way in which the landlord may combat anti- social behaviour is by use of the injunction. It is possible to obtain an interim injunction if the conduct is so serious that the landlord cannot wait until trial. An injunction can also be sought without notice to the tenant if putting him on notice would defeat the purpose of the injunction. It will be necessary to show a cause of action, the most obvious being for breach of the tenancy agreement if it is the tenant who is guilty of anti- social conduct. Whether a landlord will be able to seek an injunction against the tenant for the behaviour of visitors or other residents will very much depend on the terms of the tenancy agreement. The landlord will generally only be able to seek an injunction for nuisance if it can be shown that its use and enjoyment of the land has been interfered with. If perpetrators of nuisance do not have any lawful reason for being on land belonging to the landlord, an injunction can be sought against trespass.

In summary, the landlord will have to consider how serious the anti- social behaviour is to decide on the best course of action. The most effective way (for the landlord) of dealing with anti- social behaviour is by seeking possession under Grounds 12 and 14 although there is always the risk that the court may suspend or delay possession. If the anti- social conduct is serious it is worth considering whether to seek an injunction in the meantime. However, if the landlord can wait for two months (in effect, longer by the time the possession hearing is heard) then an outright possession order is guaranteed (subject to all the requirements being met).

Rebecca Cattermole
Arden Chambers
Co- author of forthcoming book, Anti- Social Behaviour: Powers and Remedies

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Posted on 04 Aug 2006 by Moderator

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