Updates in Possession Proceedings

Article

05 January, 2009

In issues relating to anti-social behaviour, there are a number of options that can be pursued by parties. However, these procedures are evolving and changing in line with case law. It remains, as ever, important to be aware of their implications

Lambeth LBC v Debrah (2007) EWCA Civ 1503

Possession proceedings were brought because of rent arrears and anti-social behaviour, including using the property for the sale and consumption of illegal drugs. The police executed a search warrant and found drug-related paraphernalia. In April 2007, the Court accepted an undertaking by Debrah not to bring or possess drugs on the premises, which was adhered to.

At the possession trial, the Court made an outright order on the grounds that it would have been grossly unreasonable not to, as Debrah had shown no remorse and people addicted to drugs can relapse easily.

Debrah sought to appeal both the order and the Court's failure to stay or suspend its execution. He relied upon the fact that there were no allegations or evidence of the offences occurring after April 2007 and also that the Court had not considered past, present and potential future breaches or anti-social behaviour.

The Court of Appeal refused the application, stating it was for the Judge to form, upon considering a tenant's character, a view about the risk of reoccurrence. As there was no suggestion of any breach, the Judge had to make an evaluation of future conduct. He was therefore entitled to reach the conclusions made.

Hastoe Housing Association Ltd v Ellis (2007) EWCA Civ 1238

The Claimant appealed against an order dismissing the application for an adjournment and the claim for possession.

Following allegations of noise and nuisance, the Claimant had issued proceedings. The parties negotiated and agreed an order whereby Ellis gave an undertaking not to cause nuisance for two years and the proceedings would be adjourned and struck out if not restored during the two year period. The parties asked the Court to make the order by consent. The Judge refused, ruling neither had complied with the directions for trial given and that neither was ready to proceed. He stated that the Claimant had to either pursue its claim or seek settlement. The Claimant appealed against this decision.

The appeal was allowed and it was held that the Housing Act 1988 conferred a wide discretion on the Court in dealing with possession cases. There was no good reason to refuse the adjournment, as the parties required it to give effect to their agreement and not because they were unready. This agreement meant the previous directions were irrelevant and it was for the Claimant to decide how to proceed with their claim.

Sandwell MBC v Hensley (2007) EWCA Civ 1425

After a police search of Hensley's property, evidence of cannabis cultivation was found. At trial, he pleaded guilty to possessing the equipment and to knowingly being concerned with cannabis growing. When the Claimant became aware of these convictions, it brought possession proceedings. At first instance, the Judge suspended the Order as there had been no further breaches since the conviction.

The Claimant appealed on the basis that the conviction was on its own enough to warrant an outright order and additionally there was little hope for an improvement in Hensley's future conduct as he had many previous convictions for similar offences.

The Court allowed the appeal. A suspension should only be granted if there was cogent evidence that the previous conduct would stop. Because the breaches and offending were so serious, oral evidence should have been taken on the issue.

Raglan Housing Association v Fairclough (2007) EWCA Civ 1087

Following the start of his tenancy, Fairclough pleaded guilty to 15 counts of making indecent photographs of children, which had been committed before the tenancy began in a neighbouring property. The Claimant began possession proceedings, relying upon Ground 14 of Schedule 2 of the Housing Act 1988. At first instance, the Court held that Ground 14 (b) (ii) (conviction for an indictable offence in or in the locality of the dwelling) had been made out.

Fairclough appealed on the basis that the Ground was limited to convictions for offences committed during the existence of the tenancy. This appeal was dismissed, with the Court holding that it was not limited in this way. The Ground was aimed at the presence of people in the locality who had shown by their previous conduct they were likely to adversely affect the lives of others. Once this was accepted, there was no reason to think Parliament had intended to restrict it to the life of the tenancy.

Accent Peerless Ltd v Kingsdon (2007) EWCA Civ 1314

Kingsdon, who suffered from mental disabilities, appealed against an immediate possession order made in favour of the Claimant owing to conduct causing a nuisance or annoyance to adjoining occupiers by making excessive complaints, procuring unwanted mail shots and making anonymous phone calls to a witness' workplace.

The appeal centred on whether the Judge was mistaken by not taking into account a reduction in the anti-social behaviour and that the acts of nuisance were largely historic.

The Court of Appeal held the Judge had correctly considered whether it was reasonable to make a possession order. He had noted the psychiatric evidence suggesting the conduct was because of Kingsdon's condition and its effect. Overall, his view that because of their mental health, something was likely to happen again and given Kingsdon's attitude and reluctance to accept treatment, he was entitled, if not obliged, to reach the decision made. The appeal was dismissed.

R (on the application of Gilboy) v Liverpool City Council [2008] 4 All E.R. 127

Gilboy sought a judicial review of the Council reviewing officer's decision to uphold a decision to terminate her demoted tenancy and seek re-possession. The tenancy had been demoted because of her son's criminal convictions and anti-social behaviour and the re-possession was based on further such behaviour.

It was contended that there was a violation of Article 6 Human Rights Act 1998 (right to a fair trial) because the review was conducted by another officer of the Council and so was not independent or impartial.

On appeal, the Council's decision was upheld. There was said to be no material difference between the law concerning introductory tenancies and that of demoted tenancies. Previous case-law had shown that an internal review for introductory tenancies, coupled with the availability of judicial review, were compatible with the Article and this was sufficiently similar to the process for demoted tenancies.

Knowsley Housing Trust v White [2008] UKHL 70

White had been granted a secure tenancy by the Trust, but fell into rent arrears. The Trust issued possession proceedings on the grounds of non-payment. White appealed to suspend the order and was this was granted by the District Judge, providing she paid the ongoing rent in addition to £5 extra per week. She failed to comply with the latter part of the order. Meanwhile, White also served notice under section 122 Housing Act 1985 claiming the right to buy the property, which was permitted by the Trust. Steps were then taken to complete the process. Approximately 13 months later, the Trust contended White had ceased to have the right to buy because she was no longer an assured tenant, owing to non-compliance with the terms of the court order.

The House of Lords allowed White's appeal, stating that she remained an assured tenant regardless of the suspended possession order against her and the alleged breaches. The Court was unwilling to support the Court of Appeal's verdict as they felt it would have left thousands of former assured tenants in the vulnerable position of being tolerated trespassers. Section 9 of the Housing Act 1988 also empowered the Court with wide powers to vary or discharge orders, or suspend their execution, which indicated that an assured tenancy did not end until these powers also concluded.

This landmark ruling means that the doctrine of 'tolerated trespassers' only applies to possession orders obtained against tenants of local authorities.

Ealing LBC v Jama [2008] EWCA Civ 896

Ealing sought possession of Jama's property owing to allegations of anti-social behaviour, including noise, flooding, incorrect rubbish disposal and urinating in lifts. At first instance, the Judge held it was reasonable to make an order for possession because there had been two substantial breaches of the tenancy, namely serious and persistent noise nuisance and flooding.

The Court of Appeal dismissed Jama's appeal. On the evidence it was impossible to hold that the noise amounted to no more than domestic noise. The question of reasonableness was a matter for the Judge at first instance and an appeal court would not interfere, unless the decision was wrong in law. It also stated the decision not to suspend the order was clearly correct.

North Devon Homes Ltd v Batchelor [2008] EWCA Civ 840

In 2005, police executed a search warrant at the home of Batchelor, an assured tenant of North Devon. Evidence of cocaine and cannabis was found and she was prosecuted for possession of a class A drug with intent to supply, possession of cannabis and money laundering. Batchelor pleaded guilty to the drugs charges, stating she had been asked to hold the drugs for her son and intended to return them, and was convicted of the money laundering. North Devon sought possession of the property on the grounds of a breach of the tenancy, nuisance and annoyance and conviction for an arrestable offence at the property.

The Court of Appeal dismissed North Devon's appeal, holding that there was no error in the trial Judge's view that it was not reasonable to make the order in respect of the offence of possession for a class A drug as it was at the lower end of the scale and the possession of cannabis was not sufficiently serious to warrant an order. He was entitled to hold that these breaches did not make it unreasonable for him to decline making a possession order.

The Court also agreed with the Judge's criticism of the quality of the evidence and highlighted the need for thorough case preparation.

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