Introducing ASB and varying existing possession orders

Article

14 November, 2018

The Forbes' Housing and Regeneration (Litigation) Team have recently been asked about what action our clients can take where there is an existing Suspended Possession Order ('SPO') in place for rent arrears but the tenant is now committing anti-social behaviour and/or further breaches of their tenancy agreement. There are two scenarios to consider.

The first of these is where the tenant is not complying with the terms of the existing rent SPO, and the landlord therefore applies for a warrant. In the leading case of Sheffield City Council v Hopkins (2001), this is precisely what happened and the tenant made an application to suspend that warrant. The original SPO had been granted due to rent arrears with repayment terms but in addition to failing to pay, the tenant had allegedly also caused further nuisance at the property. The Court of Appeal was asked to decide whether the Council could rely upon these further breaches of tenancy at the warrant suspension hearing. The court at first instance said no, but the Court of Appeal said yes.

In reaching its decision, the Court of Appeal highlighted that it has wide discretion under the housing legislation to stay or suspend the execution of a possession order, at any time until eviction takes place. In exercising that discretion, it is not restricted to consideration of facts connected to the original ground on which the order was made but should consider all of the circumstances 'in a broad common sense way.' The council was therefore permitted to adduce evidence of further breaches of tenancy in asking the court to dismiss the warrant suspension application and the Court was entitled to take account of these additional allegations in deciding the outcome.

The following year in Manchester City Council v Finn (2002) the Court of Appeal was asked the logical follow on question - can a landlord introduce additional allegations where there is an existing rents SPO, but the tenant is complying with the repayment terms?

Again, the Court of Appeal's answer was yes. Landlords are permitted to make applications to substitute or vary an existing SPO, even where there has been no breach of the existing terms of that order.

For landlords, these decisions are welcome, however the Court also gave importance guidance for making these applications and factors which will affect how the Court's discretion is exercised. In particular, the Court emphasized that tenants must be given sufficient notice of the additional allegations against them. It will also be a relevant consideration whether the additional allegations occurred before or after the original SPO was made.

If you are looking for any more information with regards to our services view our Housing & Regeneration section. You can also contact Amy Chadwick in our Housing & Regeneration department via email or phone on 0113 386 2694. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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