Anti-social behaviour in the community not only has a negative impact upon the mental health and well-being of residents, but it also has a negative financial impact upon landlords and the community in general.
If tenants are persistently causing anti-social behaviour, and have received recent convictions, there is a real possibility that possession proceedings could be the answer to removing those troublesome tenants. We think it is reasonable for landlords to contemplate whether they wish to continue having tenants living in their properties who are convicted criminals, depending upon the nature of the crime and whether the crime was committed near the property. A criminal conviction of a tenant could lead to a change in their personal circumstances, detrimentally affect their job security, and even time away from the property if a prison sentence is imposed – these are all matters which are of high importance to a landlord, whereby a tenant’s abilities to meet rent payments and be in a position to look after the property could be compromised. If a crime has been committed at or near the property then a responsible landlord will wish to assess whether that crime has impacted the wellbeing of others living in the area and whether the quality of life for those individuals would be improved if the tenant were required to live elsewhere.
This article sets out the law in relation to possession proceedings via Ground 7A of the Housing Act 1988, specifically Condition 1 (Conviction of a serious offence) and Condition 3 (Breach of criminal behaviour order). Consideration is also given to Ground 14 of Schedule 2 of the Housing Act 1988 and there are some practical tips to help those who are contemplating issuing possession proceedings on these grounds.
Ground 7A – Condition 1 – Schedule 2 of the Housing Act 1998
Ground 7A is a mandatory ground for possession, regardless of which condition is being relied upon under that ground. Of course, mandatory grounds will always be favoured as they give the Court very little powers to allow the tenant to remain living in the property. However, the Act is strict as to when a mandatory ground for possession can be relied upon.
The first thing which must be explored is:
- Does the tenant, or anyone living in the property, or visiting the property, have a conviction that is specified within the Housing Act 1985?
In order to answer this question, landlords need to consult Schedule 2A of the Housing Act 1985 which sets out a list of serious offences which constitute absolute grounds for possession for anti-social behaviour. The list does not just cover the most serious offences which would automatically come to mind, such as violent offences including murder and grievous bodily harm, but also some offences against property, possession of offensive weapons and drug-related offences. If the offence in question does fall under this legislation then the next question to ask is: - Was this offence committed in the locality of the property; OR elsewhere against a person who lives, or has the right to occupy accommodation in the locality; OR elsewhere against the landlord or someone employed in connection with the landlord’s housing management function?
Clearly, if the offence is committed at the property then there is no question that it has been caused in the locality of the property. Beyond the property itself, unfortunately, becomes somewhat of a grey area as unlike the question asked under (1) above, there is no statutory definition of the key word under consideration, i.e. “locality”. Whether an offence is to be classed as having been committed in the locality is really only decided by Judges on a case by case basis, and an important factor to bear in mind is how easy it has been for a tenant to get to the place where the crime has been committed. In our experience, whilst it may seem obvious for a property in the same street as the tenant’s property to be considered as being within the locality, the position is less straightforward when cases involve different streets and even different neighbourhoods – for example, we have seen that Judges will consider matters differently if the tenant is infirm or vulnerable and arguably less able to travel. If the answer to this question is yes however then the final question to ask is: - Was the date of conviction within the last 12 months?
A notice seeking possession under this condition must be served within 12 months from the date of conviction. If the tenant has appealed the conviction, the 12 months will start from when the appeal is decided or abandoned.
If at any point the answer to any of the above is no, unfortunately, condition 1 can not be relied upon.
Ground 7A – Condition 3 – Schedule 2 of the Housing Act 1998
A Criminal Behaviour Order (CBO) is made in the Criminal Courts. If the tenant, or anyone living in the property, or visiting the property has been convicted of breaching a CBO that prevented activity within the locality of the property, then condition 3 will be satisfied and you will be able to rely upon this ground in possession proceedings. Again, what constitutes the “locality” of the property is up for debate and is often where battleground lines are drawn between the parties in a dispute concerning Condition 3.
However, if the breach occurred elsewhere, it may well be still possible to use this ground. The CBO must have been put in place to protect a person who has the right to reside within accommodation in the locality, or, to protect the landlord or person employed in connection with the exercise of the landlord’s management function.
Again, as with condition 1, a notice seeking possession under this condition must be served within 12 months from the date of conviction. If the tenant has appealed the conviction, the 12 months will start from when the appeal is decided or abandoned.
If a mandatory ground for possession cannot be made out, there is always the discretionary ground for anti-social behaviour under Ground 14 as set out below.
Ground 14 – Schedule 2 of the Housing Act 1998
Ground 14 can be made out in a number of ways and we would recommend that this ground is consulted by readers of this article in full so they can understand the options available to them. Most commonly, landlords rely upon paragraph (a) which is where “a tenant or person residing or visiting the property 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.” This does not require a criminal conviction – rather, if the landlord is able to show the Court that the mere conduct of the tenant satisfies this ground then that is enough. However, paragraph (b)(ii) is also commonly of assistance to landlords. Paragraph (b)(ii) provides for situations where the tenant, or anyone living in or visiting the property, has been convicted of an indictable offence committed in, or in the locality of, the dwelling-house.
Paragraph (b)(ii) can be handy if the tenant’s conviction is not a serious offence that can be found within Schedule 2A of the Housing Act 1985, but instead constitutes an indictable offence, i.e. one that can be tried in either the Crown Court or Magistrates Court. In those circumstances, Ground 14 will be made out, and the Court should then consider if it is reasonable to make a possession order. The main advantage of being able to rely upon this specific part of Ground 14 is that a landlord does not have to prove that the tenant is 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. Rather, the criminal conviction in itself will be enough, and so the landlord is not put to as much of an onerous task in gathering evidence, such as witness statements from others living in the area, to satisfy the Court that anti-social behaviour does indeed exist.
Practical tips
Evidence is crucial when issuing any claim for possession on the basis of a section 8 notice, but is arguably of even higher importance when dealing with the abovementioned grounds given the strict tests that Judges are required to apply.
We consider that bearing in mind the below tips will put landlords in the best stead to successfully rely upon either Grounds 7A or 14, or quite often both simultaneously: –
- Have a system in place for accurately recording incidents and ensure that Certificates of Conviction are obtained to provide that tenants have indeed committed offences;
- Make sure all internal policies have been adhered to (this is crucial to prevent any defences, based upon Public Law, being raised), whereby if, for example, a policy allows for internal reviews make sure those reviews are offered and then followed if appropriate in accordance with the policy;
- Try and obtain as much detail as possible about the incidents that have occurred, particularly if it is Ground 14 paragraphs (a) and (aa) which are being relied upon, whereby Judges are concerned about the conduct of the tenant, and how this conduct is anti-social, and will not attach a great deal of weight to a simple list of incidents;
- Engage with support workers and / social workers these professionals will be able to provide background information to the tenant and their behaviour which will be crucial when considering proportionality assessments and will enable you to explore other avenues and help defend any Article 8 and Equality Act defences;
- Make sure the dates within your notice are correct – Ground 7A states that the notice period has to comply with the requirements of a notice to quit and so it is important that you make sure to serve the notice on the last or first day of the rental period; and
- Do not just rely upon a housing officer presenting the case within their witness statement as doing so creates hearsay evidence, and even though hearsay evidence is admissible it carries less weight – it is always best to get the evidence from the original statement maker, e.g. if PC Smith attended the property and saw stolen items in the property, obtain a statement from PC Smith themselves.
If you would like to discuss any of the issues raised in this article, please contact David Low (djl@swinburnemaddison.co.uk) or Kaye Cunningham (kcu@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 legal issue.
