By : Andrew Lane
Ask many people what the main civil measure is to control unruly tenants or their family members or visitors and they may well say the anti-social behaviour order ("ASBO"). Yet in the six years since this process was introduced by the Crime and Disorder Act 1998 there have only been a little over 1000 ASBOs.
They attract publicity of course, not least when the restriction on the defendant is worthy of tabloid comment, such as preventing the defendant from saying the word "grass" or talking through letter boxes (as happened recently), but by far the most common procedures used by social landlords to deal with and control nuisance behaviour are the possession action and injunction.
The social and political climate over the last ten years, and the greater use of hearsay evidence in possession and injunction cases, has made it increasingly difficult to defend tenants faced with a possession action on nuisance grounds and/or an injunction claim for similar reasons. That is not to say though that there are not approaches and tactics that can be employed in some cases in order to achieve a positive result for the tenant client, and my impressionistic view is that perhaps the tide is turning somewhat with courts requiring a "better prepared" case by the landlord if they wish to succeed.There are going to be cases where it is apparent (if not necessarily admitted) that there is compelling evidence of serious nuisance behaviour which has shown no signs of abating and where, as far as this can ever be said in the court process, a possession order is inevitable. I had to advise in a recent case that there was no defence to a nuisance possession claim where not only were the allegations (of mostly noise disturbance) largely admitted but the tenant clients not only had failed to modify their behaviour but there was also no reason to think that this situation would change in the foreseeable future.
More normally however, the case is less unequivocal and in my experience is best handled robustly but with a degree of common sense. By that I mean that:
- the landlord should be asked to disclose their evidence for each and every allegation and why they say it caused a nuisance or annoyance to others, and conversely
- the tenant client should not be denying things when it is clear that they happened, or be simply putting the landlord to proof on everything, when the reality is that an admission is the correct response (remembering that the Funding Code Guidance does not advise against Legal Representation public funding where a defence can still be raised as to reasonableness). To do otherwise would be to give the whole of the tenant client’s evidence a lack of credibility when it becomes clear at trial that certain allegations are indeed proved, with the result that a Judge will be less-minded to give them the "benefit of the doubt" on other matters and upon considering the eventual order.
Lord Justice Hale made it plain in Lambeth LBC v Howard (2001) 33 HLR 636 @ 647 (43) that continued denials of any previous wrongdoing are highly relevant to the question of whether to grant an outright order.
I was earlier this year representing an assured tenant in a nuisance possession claim brought by a registered social landlord at Kingston County Court. After a 3-day trial the court found the 13 or so specific allegations relied upon by the landlord largely unproven save for one which had taken place 15 months previously. Despite the landlord’s claim being supported by live evidence from 2 neighbours and a police officer (and only the tenant herself attending court to give evidence in support of her case) the judge dismissed the claim given the fact that this one incident had occurred a significant period before the trial.
The Judge accepted the submission that those allegations raised in the landlord’s statements but not included in the Particulars of Claim should not be considered when deciding if the ground for possession had been proved. She also agreed that as all but one of these "extra" allegations pre-dated the issue of proceedings then those were not to be considered when deciding if it was reasonable to make a possession order (if the ground had been proved).
The tenant client did not seek to portray herself as "perfect", admitting certain indiscretions (largely as a result of provocation from the landlord’s main neighbour witness). It was therefore much easier to portray her evidence as being honest and realistic when considered against the evidence relied upon by her landlord, much of which did not come up to proof because the neighbour witnesses in particular had exaggerated even on their case the alleged degree of culpability of the tenant’s part.
Not every case, as I have indicated above, is one that can be credibly opposed in such an absolute fashion and there are occasions where possession is inevitable or, more usually, the question of an order suspended on terms comes to the fore. I am instinctively cautious about accepting an offer of a suspended possession order or suggesting it as part of any Part 36 Offer. This is not only because in cases where "false" allegations are a feature of the case they likely to continue with the result that a full hearing will eventually take place in any event as the landlord seeks to issue a warrant. There is also the question of the tenant client becoming a tolerated trespasser where there is a breach of any suspended terms.
In my experience (both at the Bar and before that as an advice worker in the voluntary sector and local authority councillor) it is all to easy, given their prevalence, to treat nuisance possession claims as simply an exercise in getting the landlord to prove their case. Yet a greater willingness to adopt a more pro-active approach in a case and do much of the running can produce positive results even in what on first flush seem the most difficult of cases. It also enables the tenant client’s lawyer to give proper and tactically astute advice to their client, and allow them to pursue the most appropriate option.