In addition to introducing simpler, more effective powers for the courts to tackle anti-social behaviour and providing a better level of protection for victims and communities against such behaviour,
The Anti-Social Behaviour, Crime and Policing Act 2014 (the Act) ('ASBCPL') created new mandatory grounds for possession for secure and assured tenancies on the basis of anti-social behaviour.
Part 5, sections 94 to 100 of the ASBCPL now make it mandatory for a court to grant a possession order where one of five anti-social behaviour conditions is met. Those conditions relate to the anti-social behaviour of either the tenant, a member of the tenant's household or a visitor of the tenant. The new mandatory ground is created by way of the addition of a new section 84A to the Housing Act 1985 (section 94 ASBCPL).
Condition two (section 84A (2) Housing Act 1985) will be met if a tenant, member of the tenant's household or visitor has been found by a court to have breached an injunction to prevent nuisance and annoyance under Part 1 of the ASBCPL (sections 1 to 21). The injunction regime provided for within Part 1 will be explored in more detail in a later article.
Royal assent was granted to the ASBCPL on 13th March 2014, but introduction of the new Civil Injunction regime created by Part 1 of the ASBCPL was delayed. However, it appears that it may now come into force on 23 March 2015.
If that takes place, from 23 March, social landlords may be able to use the breach of an injunction for the first time to apply for a possession order based on a mandatory ground under the 1985 Housing Act.
Three practical points arise for social landlords and their advisors to bear in mind before issuing possession proceedings founded upon the breach of an injunction.
Firstly, take into account what steps tenants might take to avoid any such claim for possession by opposing applications for injunctions in the first place.
It may well be that:
Judges will become less inclined to grant without notice injunctions (section 6), bearing in mind the specific power in the Act to dismiss them (section 6 (2) (c));
Even where an interim injunction is granted without notice (section 7), tenants are more likely to contest them at the return date; and
Any subsequent committal proceedings are also more likely to be contested, and tenants are less likely to concede any breaches as they could trigger the mandatory possession ground.
Clearly, it will be vital to obtain clear and unimpeachable evidence of the breach of an injunction if a possession claim is to be made subsequent to the injunction proceedings.
Secondly, it would be good practice for Social Landlords to consider reviewing and properly record and document any decision to seek possession before serving a NOSP. The ASBCPL does not specifically require Social Landlords to review a decision to seek possession before serving a NOSP (in contrast to the position with Starter and Introductory Tenancies) but it would probably be interpreted as a prudent and reasonable step for the Social Landlord to take before serving a NOSP as it is likely that Social Landlords will still have to satisfy the Proportionality Test, and deal with other Public Law defences in the context of a possession claim based upon the breach of an injunction.
Thirdly, it is likely that tenants, their advisors and judges will look very closely at the wording of the NOSP's, and in particular the cogency and quality of the evidence that the injunction has been breached. The recitals to any possession orders made under section 84A of the 1985 Housing Act should clearly record the court's factual findings in relation to the breach of the injunction in order to make successful appeal all the less likely.
The new Civil Injunction regime is likely to be a helpful and formidable new weapon in the Social Landlord's armoury and tenants guilty of serious breaches of their injunctions, or who are subject to repeat injunctions will find it hard to resist possession proceedings founded upon breaches of such injunctions. Inevitably though, and given the mandatory nature of the new ground for possession, tenants and their advisers are likely to analyse and oppose injunction applications and any allegation of a breach of injunction with great vigour. Social Landlords and their advisors will need to plan and prepare their cases very carefully with the gathering of quality evidence of any breach being of particular importance if possession proceedings follow. Also though, Social Landlords should review their policies and procedures, in particular when they will apply for civil injunctions and being able to prove that they have been breached.