Suspension deemed Unreasonable where there is Real Risk of Further Damage

Article

07 July, 2009

The case of CDS Housing v Bellis [2008] EWCA Civ 1315 has shown the potential outcome in situations where there is a real risk of a tenant inflicting further damage upon the property itself and possibly to neighbours. In this case, the court was required to determine between the wishes of a tenant to stay in his home, against those of the landlord who wanted the individual to be removed on the grounds that there was a significant chance that more harm would be caused.

The Facts

The tenant (B) was the secure tenant of a flat in a block owned by the claimant (CDS). B was said to be mentally unwell and had suffered from delusions. One such example was that he believed that there was electro-magnetic radiation coming from both the electrical and central heating systems in the flat. Due to this he disrupted the functioning of the equipment which left the property unsafe and at risk of explosion.

B moved out of the flat but left his personal possessions behind. CDS obtained a court order which required B to remove these items in order for repairs to be carried out. B did not comply with this order. As a consequence, CDS brought possession proceedings against B and at the initial hearing a psychiatrist gave evidence of B' s mental state which concluded that, in their opinion, it would be only a matter of time before further damage was caused to the property if B was allowed to return to the flat alone.

On this basis, the County Court judge granted possession of the flat to CDS. He found that the property was at that time in a dangerous condition, that CDS was concerned about the potential consequences of repairs not being completed and that CDS had done everything possible to avoid initiating possession proceedings. He therefore considered granting a possession order to be reasonable in the circumstances. It was also the judge's view that B did not have the ability or will to comply with any suspension or postponement of the order.

B appealed against the decision, claiming that the judge should have considered the issue of whether to suspend the order separately and also should have examined whether the order could have suspended on terms that permitted B to follow a care and medication programme.

The Court of Appeal's Decision

In dismissing B's appeal, the Court of Appeal held that although statute required the consideration of reasonableness to be separate, this was a case where at all stages the facts led to the same question being asked: whether the court could be satisfied that there was no real risk of B damaging the property again in the future. The conclusions of the psychiatrist's report indicated that there was a significant chance that this might happen. It was the court's view that once the trial judge had determined that there was indeed a considerable risk, the only reasonable conclusion that could have been reached was to grant an order for possession.

Summary

In situations where there is a real risk of damage and injury being caused to a tenant, their home or their neighbours, the court may view an order for possession of the property as being the only realistic and viable option to prevent these outcomes from occurring. Housing providers may also wish to note that in initially granting the order for possession, the trial judge had considered the fact that the landlord had done everything to avoid taking such action. This factor may also be relevant in similar proceedings in the future.

For more information and assistance on these issues, please contact the Housing Litigation Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.

Back

Make an enquiry