When considering the range of anti-social behaviour matters the Swinburne Maddison Housing Litigation team are regularly asked to assist with on behalf of landlords, one of the more difficult and complex situations which unfortunately appears to be becoming more commonplace is the issue of ‘cuckooing’.
What is Cuckooing?
The term cuckooing takes its name from the situation which can be seen in the natural world where a cuckoo bird takes over the nests of other birds to lay their eggs. So, in a landlord and tenant sense, it seems apt to use this term when describing the unfortunate practice where people take over the home of another and use that property for exploitation.
This often involves organised criminal gangs taking over the homes of vulnerable people, with those vulnerable people frequently being lonely or isolated, having learning difficulties, or suffering from addiction and mental health issues. The vulnerable person is usually befriended, with the underlying sinister motive, and indeed the central motive, being to use their property for illegal activity, such as drug use (including the dealing of drugs), storage of weapons and human trafficking. In fact, the property may be taken over to such a great extent that it practically leaves it impossible for the tenant to continue living there, rendering them homeless.
What is the challenge for Landlords?
In this set of circumstances, it is not necessarily the tenant who is perpetrating the anti-social behaviour, and so this poses challenging questions as to how to deal with the tenant, and others using the property, in a way which is seen acceptable by the Courts, something which we will explore within this article. Of course, this is just one of many situations where a landlord may find that anti-social behaviour is not being advanced by the tenants themselves – situations involving children, partners and associates of tenants causing complaints arising from those in the vicinity are all too regular, along with anti-social behaviour that may arise from drug dealing in a property or domestic violence.
As matters currently stand under the Modern Slavery Act 2015, it can be out of reach for cuckooing to be a criminal offence in itself. Clearly, if the exploited individual is being forced into labour in their own home, or threatened or attacked themselves for instance, these are crimes which can be dealt with under existing laws, however the legislation falls short of criminalising the takeover of someone’s home and using it for their own purposes. Sir Iain Duncan Smith, Conservative MP for Chingford and Woodford Green, has said: “It cannot be right that the invasion of someone’s home by gangs for criminal purposes is out of the reach of the Modern Slavery Act. This isn’t a drug crime or a property crime, it is a crime that devastates vulnerable people in the very place that should be their sanctuary.” However, despite the position under legislation and the criticisms that have followed, clearly it is of the utmost importance for landlords to know whether illegal activity is being carried out in their properties and to further know the full extent of people actually living in their properties too.
Taking action
In order to deal with cuckooing issues and put a stop to them, landlords need to focus upon who their legal action is to be against, whether that be the tenant or the true perpetrator of anti-social behaviour. Under the terms of the vast majority of tenancy agreements, it is the tenant themselves who are responsible for proper management of their tenancy, whether that be their own conduct and behaviour or that of visitors, and that the tenant is prohibited from displaying, encouraging or facilitating anti-social behaviour at the property which would affect those in the vicinity. It follows that possession action can be pursued against the tenant for breaching their tenancy agreement and indeed many landlords take this approach so that not only is a tenant breaching the terms of their tenancy agreements removed from the property, but also so that a fresh start can be taken with new tenants who would hopefully not succumb to the pressures of others who wish to exploit the property.
However, whilst possession orders in this type of situation can be successful, it is important to be mindful that cuckooing often involves tenants who are particularly vulnerable being exploited. This is where a proper and detailed proportionality assessment should be carried out, mindful of the Public Sector Equality Duty and any disabilities which may be a factor and which need to be comprehensively considered.
Furthermore, landlords are often hesitant to seek to evict tenants from their homes when the idea of someone, especially if they are vulnerable, being threatened and intimidated by organised criminal gangs can attract some sympathy. There is also a concern that even if the tenant is evicted and possession of the property is taken back by the landlord, this will not put an end to complaints of the same type of anti-social behaviour in that area. Often vulnerable people, whether they are elderly or disabled, are placed in accommodation which is surrounded by others who are in a similar situation to them in order to create a community feeling and prevent tenants from feeling isolated. If those cuckooing from a tenant’s property are prevented from operating from that specific home, it is perhaps likely that they will seek out alternative properties in the same area before putting themselves to the inconvenience of setting up in an entirely different place.
This is why it can often be seen as more desirable to pursue action against those individuals who are actually cuckooing from a tenant’s property by way of injunctive relief, excluding them from a particular property or, depending on the circumstances and level of concern that other tenants in the area may also fall victim to cuckooing, excluding them for an area altogether. There are some practical tips which we consider must be at the forefront of a landlord’s mind if they are to maximise their chances of success with this, as follows:-
- Encourage the tenant to be supportive of the action being sought by way of injunctive relief so that a witness statement from their perspective, and in particular commenting upon the detrimental effect the cuckooing is having on them, can be obtained. Whilst it is not essential for the tenant to be cooperative in this respect, it is certainly desirable, as not only will this amount to further evidence in support of the landlord’s claim, but also it may help to persuade a Judge that the tenant is very much a victim in this situation and a reason why injunctive relief is appropriate as opposed to a possession order.
- Obtain as much documentary evidence from your own point of view as landlord as possible which supports the assertion that cuckooing is taking place in the property, including, in the case of blocks of apartments, data showing unusual fob activity and photographs of external doors being propped obtain for access and, in general, regardless of the type of property, photographs of evidence of illegal activity taking place inside the property and photographs/video footage, perhaps from CCTV, showing an increase in the numbers of people visiting the property, whether by foot or vehicle.
- Speak to complainants of the anti-social behaviour, or people in the area generally, so witness statements can be taken so as to corroborate other evidence being gathered, and for those individuals to explain how much of an impact the anti-social behaviour is having upon them personally and the community as a whole so that a Judge is more likely inclined to consider that injunctive relief is proportionate.
- Work with other agencies, including the Police and social services, to see whether supporting evidence can be secured to support any application, including details of any criminality linked specifically to the individuals identified as cuckooing.
Each case of cuckooing is different, both in terms of the types of illegal activities being carried out in a property and the severity of the same. Regardless of this however, an essential consideration in every case is whether the tenant appears to have fallen victim to those responsible for the cuckooing and whether it is really their possession of the property which is the core issue.
As with all sorts of other claims regarding anti-social behaviour being pursued by landlords, evidence is key, and it should be stressed to tenants whose homes have been subjected to cuckooing that their attitude to the activities and whether they have a desire for those activities to be stopped, could very much determine whether it will be them or someone else who is named as a Defendant in Court proceedings. This same principle applies to other situations where tenants are not necessarily the main perpetrator of anti-social behaviour as touched upon earlier in this article, whereby such tenants are sometimes only linked to the anti-social behaviour by formally being the named tenant under the tenancy agreement.
If you would like to discuss any of the issues raised in this article, please contact David Low (djl@swinburnemaddison.co.uk) or Lewis Brown (lrb@swinburnemaddison.co.uk) or call 0191 384 2441.
This article is for general information only. It does not, and is not intended to, constitute legal or professional advice. The law may have changed since this article was published and we would always recommend that you seek specific advice on any particular legal issue.