02 July, 2010
Under ground 14A of Schedule 2 to the Housing Act 1988, it is possible for social landlords to seek possession of a property let under an assured tenancy due to domestic violence. The discretionary ground requires that the property in question was being occupied (whether alone or with others) by a couple (with one partner being a tenant) and that one partner has left the property because of violence or threats of violence by the other towards them or to a member of their family who was residing with them. A court will also have to be satisfied that the partner who left is unlikely to return.
In a recent decision given in Metropolitan Housing Trust v Hadjazi  EWCA Civ 750, the issue of when domestic violence can be used as a ground for possession was considered. As such, it is important that social landlords are aware of the judgment and the potential impact it could have on their operations.
The tenant (H) was granted an assured tenancy of a property from the Trust (M) in April 2003. He lived there with his wife and four children. From 2000, it was said that there had been physical violence and threats of violence towards his wife and children by H. In 2006 H left his wife and she remained in the property. H's behaviour continued after the separation and in April 2007 he breached an injunction made against him, for which he received a suspended sentence. On the advice of Social Services, H's wife and his children left the property in November 2007 and moved to another location. In December 2007 H moved back into the property. One month later, M served a notice seeking possession upon him on grounds 12 (breach of tenancy obligation), 14 (nuisance or annoyance) and 14A (domestic violence).
The possession case was heard in September and October 2008 and the judge determined that H's conduct, when he and his wife and been living apart, had caused his wife to leave the property. This was referred to as the 'causation point'. The judge held that H's conduct did not fall within ground 12 as the relevant obligations of the tenancy agreement were concerned with behaviour directed towards neighbours rather than family members. For the same reasoning, the judge also ruled that ground 14 had not been satisfied.
In relation to ground 14A, the judge held that it only applied to instances of violence or threats of violence proved against H when he had been residing at the property with his wife as a couple. It was held to not apply to any behaviour or threats which occurred after they had stopped living together. Collectively, the judge held that there was no ground upon which an order for possession could be made.
M appealed against this decision on the grounds that:
H argued that ground 14A was to be interpreted narrowly given the consequences for the tenant if evicted. H submitted that the wording of the ground was in the past tense which indicated that it was only to be applicable to violence when the property was occupied by a couple. Any subsequent violence was not to be considered to be within its scope.
The Court of Appeal held that there was nothing ambiguous about the wording of ground 14A which could result in a violent party being 'favoured' over a party who had found it necessary to leave the property in question. The court also considered that the ground also considered whether the person who left is likely to return, which indicated that the use of the past tense did not require the parties to be living together as a couple at the date of the violence.
It was additionally considered to defy common sense for the timing of the departure by the victim of violence to make any difference to the availability of ground 14A to a landlord. It was said that such behaviour which causes one individual to leave a property is the same inhumane conduct with the same human consequences regardless of whether they were living together as a couple at the date of the victim's departure. The court said that no explanation had been given as to why Parliament would make a tenant liable to a possession order for what was done while they lived with their family, but not for how the tenant behaved after separation, even though the consequences (the family leaving the property due to violence and threats) were exactly the same.
Although the Court of Appeal ruled that grounds 12 and 14 did not apply, it was ordered for the case to be remitted to the county court to be reconsidered in the light of this judgment on the applicability of ground 14A.
The Court of Appeal has provided useful guidance on the applicability of ground 14A and when it can be relied upon in possession proceedings. It would be advisable for all housing associations to note this judgment and consider how it could affect future cases.