A help or hindrance – the new grounds for possession

The new grounds for possession introduced by the Anti-Social Behaviour Crime and Policing Act 2014 came into force last year and are intended to reflect the seriousness with which the government is treating anti-social behaviour. But will the new provisions really prove to be a help to landlords, or a hindrance?

Mandatory grounds

The new mandatory ground is inserted as a new section 84A of the Housing Act 1985 for secure tenants and as a new ground 7A into Schedule 2 of the Housing Act 1988 for assured and assured shorthold tenants.

The Court must make a possession order under these provisions if one of five conditions are met and, in the case of secure tenants only, the landlord has complied with the rights of review requirements below. The five requirements are :-

1. Conviction for a serious offence committed in the locality of the premises, or elsewhere against a person with a right to reside in the locality or against a person employed by the landlord in connection with its housing management functions;
2. Proven breach of an Injunction Preventing Nuisance and Annoyance;
3. Conviction for breach of a Criminal Behaviour Order (replacing ASBOs on conviction);
4. That the premises have been subject to a closure order lasting more than 48 hours;
5. Conviction for an offence under the Environmental Protection Act 1990.

The new provisions are particularly burdensome for social landlords with secure tenants, having to offer tenants a right to have the decision to seek eviction reviewed, in the same way as with an introductory tenant. This will undoubtedly cause delays and open the decision making process up to scrutiny, when the landlord can otherwise issue proceedings on ground 2 in these circumstances and issue proceedings straight away. In that case, the landlord would perhaps rather take the risk of arguing reasonableness than to draw proceedings out further by dealing with a review process and waiting for the notice seeking possession to expire.

Similarly, the provisions may be less helpful for landlords with assured and assured shorthold tenants than first envisaged, given the additional evidential requirements needed to prove an actual breach or conviction. Further, in cases of assured shorthold tenants, the landlord is likely to still rely on a section 21 notice and use the accelerated procedure where the fixed term has expired to save the costs of dealing with a fact-finding hearing.

Discretionary grounds

In addition to the new mandatory ground, two new discretionary grounds were introduced :-

1. Nuisance or annoyance to the landlord or persons employed in connection with the landlord’s housing management functions (new grounds 2(a)(aa) to Schedule 2 to Housing Act 1985 and 14(a)(aa) Schedule 2 to Housing Act 1988); and
2. Conviction for an offence at the scene of a riot (new grounds 2ZA to Schedule 2 to the Housing Act 1985 and 14ZA to Schedule 2 Housing Act 1988).

 Whilst these introductions are welcome, in particular to recognise the importance of the landlord’s and its employees’ safety, many cases falling within the new grounds are likely to be covered under the existing grounds for anti-social behaviour and breach of tenancy, where most tenancy agreements prohibit harassment and nuisance towards members of staff. Further, the provisions relating to riot offences may have been an effective remedy in the wake of the London riots of 2011, but it is doubtful how much use they will be in reality given the rarity of such occurrences.

More information on the new provisions can be find via the Home Office guidance: http://bit.ly/1fhA2nj.

For more information please contact me at faye.didcote@dmhstallard.com or on 0129360 5034.