Warning signs

A recent Court of Appeal ruling shows how the courts will not suffer tenants who fail to heed repeated warnings, write Suzanne Gregson and Sarah Glanville.

A tenant's challenge to a District Judge's decision to make an outright possession order rather than a suspended order was dismissed by the Court of Appeal this month in the case of Barking and Dagenham Borough of London v Bakare [2012] All ER (D) 27 (May). The case demonstrates that the Court will not look favourably on tenants who fail to remedy serious breaches despite warnings.

A brief overview

The Defendant, Ms Bakare, was a tenant of Barking and Dagenham Borough of London ("the Council") and lived in a block of flats with her two adult sons. The Council first issued possession proceedings against Ms Bakare in 2005 on grounds of rent arrears and a suspended possession order was granted.

Between 2005 and 2009, Ms Bakare failed to keep up with her rent payments, in breach of the suspended possession order and the Council made a number of applications for a warrant of possession. In each case, Ms Bakare successfully applied to suspend the warrant.

By 2010, there were a number of allegations of serious anti-social behaviour perpetrated by Ms Bakare's sons, including drug use and the possession of weapons. The Council applied for an outright possession order on grounds of rent arrears and anti-social behaviour. The Council also applied for an anti-social behaviour order ("an ASBO") against both of Ms Bakare's sons.

At the first hearing in Romford County Court, the judge adjourned the application and directed for the level of rent arrears to be determined at the next hearing. He did, however, find that one of Ms Bakare's sons had committed various acts of anti-social behaviour and made an ASBO against him. The terms of the ASBO prevented him from associating with certain people or loitering in the communal areas of his block of flats.

By the time of the second hearing in 2011, Ms Bakare had reduced her rent arrears to an acceptable level. His Honour Judge Platt therefore considered whether he could make an outright possession order on the ground of anti-social behaviour only. HHJ Platt found that since the first hearing and despite the ASBO, the anti-social and criminal behaviour perpetrated by Ms Bakare's son had continued and in fact escalated. HHJ Platt held that this was sufficient for him to grant a possession order to the Council.

Ms Bakare argued that she had recently taken steps to exclude her son from the property and asked the court to suspend the possession order on terms that she continue those steps.

HHJ Platt exercised his discretion to make an outright order for possession on the grounds that the behaviour had continued in spite of the judge's findings at the first hearing and the making of the ASBO and, accordingly, it was clear that the behaviour would continue in spite of a suspended possession order.

Ms Bakare appealed the decision to the Court of Appeal on the grounds that HHJ Platt had not properly considered the steps she had proposed to form the terms of a suspended possession order.

The Court of Appeal held that it was within HHJ Platt's discretion to find that the anti-social behaviour would continue if a suspended order were made and upheld his decision to make an outright order. Ms Bakare and her son had been given sufficient warning at the first hearing and had failed to adequately address the serious breaches of the tenancy agreement. The Court of Appeal had no grounds to interfere with the first instance decision.

A clear message to tenants

This case demonstrates that the courts will not suffer tenants who fail to heed repeated warnings. Affordable housing providers should be in a strong position when bringing either possession proceedings or injunction applications to address anti-social behaviour if they can show evidence that repeated warnings have been given but ignored.

To ensure that strong supporting evidence is available if a case goes to court, housing providers must have clear procedures. Those procedures should include written warnings at prescribed intervals and follow-up appointments to assess whether the warnings have had any effect. It is useful to have precedent warning letters available and all case managers should be trained to ensure that they are used appropriately and effectively.

Suzanne Gregson is a partner and head of the Affordable Housing Litigation team and Sarah Glanville is a solicitor at Eversheds. Suzanne can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it. or on 0845 497 8242.