Hoarding: when clutter becomes anti-social

David Low and Lewis Brown look at the challenges presented by hoarding and set out some practical steps landlords can take.

When considering the range of anti-social behaviour matters that our Property Litigation team are regularly asked to assist with, there is one issue in particular which seems to crop up time and time again: hoarding. Since the start of the pandemic, we have noticed that landlords are more frequently seeking our advice regarding concerns they have over tenants who are allowing their properties to fall into a state of disrepair and, in particular, allowing properties to become overly cluttered.  

This can often lead to issues around refusals of access, expiry of gas safety checks and a general concern for the condition of the property and the welfare of the tenant and others in the locality.

In this article we will explore what is meant by the term “hoarding” and why this can be such a serious problem for both the landlord and the tenant. We will also outline some practical tips for landlords wishing to be proactive in doing what they can to avoid the situation getting out of control in the first place and some of the legal options which may be available once all other options have been exhausted.

What is hoarding?

‘Hoarding disorder’ is a mental health condition recognised by the NHS and occurs when someone acquires an excessive number of items and stores them in a chaotic manner, usually resulting in unmanageable amounts of clutter. Often, the items are of little or no monetary value. Mental health professionals consider hoarding disorders as being challenging to treat, particularly when many hoarders do not see it as a problem, or have little awareness of how it is affecting their life or the lives of others.

Clearly, this is a very serious issue for the hoarder themselves, but this sort of behaviour can also have a dramatic impact on the hoarder’s neighbours, the local community and the property which the hoarder is living in.

Interestingly, it is often not the neighbours or members of the local community who raise the initial complaint of hoarding – rather, given that hoarding is done behind closed doors, it is normally not until the landlord or their representative makes a visit to the property that the extent of the problem is revealed. Hoarding can long remain a hidden problem out of sight, and in the most unfortunate cases only becomes apparent upon the occurrence of a catastrophic event.

Practical tips for spotting and preventing a potential hoarding problem

We know from experience just how challenging hoarding issues can be for landlords to deal with and, certainly, it is in no one’s interests for such matters to escalate to the stage where legal intervention is required. As a matter of best practice, landlords should be as proactive as possible when dealing with this issue, ensuring that they have a general awareness of what state their properties are in at all times. We would also strongly advise all landlords to adopt the following measures:

• Carry out routine visits to all properties and have suspected issues of hoarding marked for review in order for the situation to be flagged and monitored as appropriate;
• Keep a log of photographic evidence, with photographs to ideally be taken at each routine visit of the property, so that it can be easily determined whether suspected hoarding issues are improving or worsening;
• Assess what additional support might be required and ensure that problems are reported to the tenants’ social workers where applicable;
• In cases of established hoarding, carry out a risk assessment to determine if there is a real risk of danger to the hoarding tenant or any other individual, whether that be another individual living in the property or in the vicinity;
• Keep in regular contact with hoarding tenants to check whether they are receiving treatment for their condition and whether they feel as though they are able to manage their behaviours on an everyday basis; and
• In severe cases where intervention by the landlord and others has resulted in no improvement of the hoarding issues and there is a risk of injury/death associated with the hoarding activities, consider taking legal advice in respect of injunctive relief or possession action – following the above steps and having a clear log as evidence of attempts made by the landlord to engage with the tenant and resolve the matter informally will undoubtedly be of benefit to a landlord’s case, should the matter be brought before a court.

Legal options

As hoarding is considered an anti-social behaviour issue, any legal action taken by landlords will be governed by the Anti-Social Behaviour, Crime and Policing Act 2014. Whilst it may seem extreme to class hoarding as a form of anti-social behaviour, section 2(1)(c) of this Act provides that any conduct capable of causing housing-related nuisance or annoyance to any person amounts to anti-social behaviour. As hoarding results in the accumulation of large volumes of clutter – which can, in turn, make cleaning very difficult, leading to unhygienic conditions and encouraging rodent or insect infestations – this would clearly fall within the definition of a “housing-related nuisance or annoyance”. Furthermore, the hoarding of combustible materials, such as newspapers, magazines and books, increases the risk of a fire, and the clutter itself can block the route of an escape in the event of a fire. If clutter is kept in larges piles then it can collapse onto those in the property or prevent tradesmen who are instructed to carry out essential repairs from carrying out the task at hand.

When a landlord becomes aware that there is a hoarding issue in their property, they should first consider whether the problem can be resolved by encouraging the individual to comply with the conditions of their tenancy agreement. It is of course common practice for tenants to have an obligation to keep the property tidy and clean, and to refrain from engaging in anti-social behaviour. Unfortunately, given the detrimental impact that a hoarding disorder can have upon a person’s state of mind, simply encouraging them to act in a way that is in line with their tenancy agreement can have little effect.

Depending upon the extent of the hoarding issue, a landlord may wish to seek an injunction to remedy the breach of a tenancy agreement in an attempt to prevent further incidents of hoarding. Injunctive relief can also involve the landlord seeking that the order from the Court includes a requirement for the tenant to cooperate with the landlord’s support service to address the underlying issues relating to their hoarding and be involved with the actual clearance of the clutter.

In more severe cases of hoarding, the landlord may consider using its powers under the Housing Act 1988 and seek possession, relying upon one of the grounds listed under Schedule 2 of this Act. The landlord would normally be required to rely upon discretionary Grounds 12 (breach of tenancy obligation), Ground 13 (deterioration in the condition of the property or common parts), Ground 14 (causing a nuisance/annoyance to people in the locality) and/or Ground 15 (deterioration of furniture). Furthermore, it is worth adding that when local authority landlords pursue possession action in connection with hoarding situations, reliance is often placed upon Grounds 2 or 3 of the Housing Act 1985 which respectively relate to the tenant causing a nuisance/annoyance to people in the locality and the condition of the property deteriorating.

In all cases, any responsible landlord who receives reports of hoarding should balance the needs of the individual against the needs of the local community. The focus of the landlord should be upon preventing further hoarding rather than punishing the individual concerned.

Also, due to the close connection with mental illness, careful consideration should be given by the landlord as to whether the hoarder is likely to be considered to have capacity or not. Clearly, that is not to say that someone lacks capacity merely because they suffer from a mental illness, however this is still an important consideration for landlords in cases such as this, not least because the Court will not make an order for injunctive relief in circumstances where there is clear evidence that the Respondent to the action lacks capacity to comply with its terms.  This is sometimes referred to as “specific capacity” or “Wookey” capacity following the leading case of Wookey v Wookey (1991) Fam 121. “Wookey” capacity is in itself distinct from litigation capacity where more generally a person must be capable of understanding information relevant to the litigation, retaining that information, evaluating the information, and communicating a decision. Of course, a person who does not have capacity to conduct litigation will need a litigation friend, i.e. someone who can conduct the proceedings on their behalf.

Similarly, seeking possession of a property could also be unsuitable where the hoarder is suffering from a hoarding disorder and is considered to be both vulnerable and lacking mental capacity as a Court may take the view that the hoarder does not have capacity to litigate.

A hoarder may even argue that the landlord’s treatment of them amounts to disability discrimination.

David Low is a partner and Lewis Brown is a solicitor at Swinburne Maddison.