Earlier this year, the Government revealed its first Anti-Social Behaviour Action Plan (“the Plan”); a move which signaled a clear intention on part of the Government to address the ever-increasing incidences of Anti-Social Behaviour (“ASB”) affecting communities across England and Wales.
Some of proposals outlined in the Plan include: increased closure powers; de-prioritising housing allocation for ASB offenders; expansion of police powers of arrest; and a “three-strike” approach to eviction proceedings.
Following the announcement of the Plan, our Property Litigation team has received an increase in enquiries from both private and social housing landlords keen to understand how the anticipated changes will impact the way that they tackle any ASB-related issues – in particular the eviction of anti-social tenants – going forward.
The key proposed changes, which may affect eviction proceedings, are as follows:
- Implementation of a two-week notice period for all ASB grounds;
- Introduction of a “three-strikes and out” approach to evictions;
- Expediting the eviction process in respect of anti-social tenants by prioritising ASB cases;
- The proposal that weight should be given by the court to evidence setting out the impact of behaviour on others;
- Clarification that behaviour “capable” of causing “nuisance or annoyance” may be sufficient to result in eviction, leading to an expansion of the discretionary grounds that can be relied upon by landlords;
- Intention to legislate the principles which judges are required to take into account when determining ASB possession claims.
Whilst the long-term implications of the Plan have not yet materialised, the proposals which have been put forward are sufficiently detailed to indicate the direction that ASB possession proceedings are likely to take in the near future. To this end we have been encouraging our clients to take a pro-active approach to future proceedings, paying particular attention to the following.
“Three Strikes and Out”
It has previously been common practice within ASB possession proceedings to seek to evidence as many examples of ASB as possible in order to demonstrate to the court the persistence of the nuisance behaviour. However, the implementation of the “three strikes and out” protocol seems to indicate a move towards the production of more targeted evidence by the claimant landlord – i.e. three separate incidents of ASB (with three corresponding warnings from the landlord) may be sufficient for possession to be ordered on discretionary grounds. What remains to be seen at this stage is how significant the behaviour and/or evidence needs to be in order to constitute one “strike”.
Behaviour “capable” of causing nuisance or annoyance
Interestingly, and perhaps most radically, the Plan indicates that the court will give weight to evidence outlining the impact of the tenant’s ASB on the landlord, neighbours and housemates, which would indicate a shift from an objective evidential test to a subjective one. This anticipated change in emphasis highlights the potential benefit of gathering additional evidence, such as the preparation of impact statements for those individuals affected by the offending behaviour.
Evidence gathering going forward
Until it becomes clearer how the courts will approach the Plan, it goes without saying that attempts to gather as much contemporaneous evidence as possible should be made by landlords, including the following:
- Photographs/videos;
- Written logs of incidents which have occurred.;
- Evidence of warnings issued by the landlord to the tenant in respect of behaviour complained of;
- Statements from affected parties; and
- Crime reports (in the event police have been involved) or reports from any other relevant agencies.
Other considerations
The Plan includes the recommendation that all tenancy agreements should include clauses which explicitly prohibit ASB in order to give rise to a clear breach of the tenancy agreement at the point at which proceedings are commenced.
There is also the implicit expectation that landlords are to exercise the ASB tools at their disposal promptly, which further highlights the need to gather as much supporting evidence as possible in a timely fashion.
If you would like to discuss any of the issues raised in this article, please contact Lewis Brown (lrb@swinburnemaddison.co.uk) or Jenna Keir-Kendrew (jek@swinburnemaddison.co.uk), or call 0191 384 2441.
With a broad client base that includes private landlords, registered providers of social housing and local authorities, the Swinburne Maddison team are experienced in providing specialist advice on a wide range of matters from property management issues and enforcement matters to volume housing disrepair claims.
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.
