Sian Evans and Janet Plant set out the options available to housing providers who find themselves in the position of housing the perpetrators of the violence that has gripped the country in the last fortnight.
Whilst the Housing Minister Grant Shapps has backed eviction action against those involved in the recent rioting, a responsible housing provider should see possession as a last resort and consider other options available.
Perpetrators could be:
- Adult family of tenants
- Frequent visitors
- Children of tenants
What action can landlords take? Well that depends on the connection to the perpetrator. The options are as follows:
- Tenants: Injunctions, ASBOs, CRASBOs Notices Seeking Possession, Eviction, Demotion
- Adult family members: Injunction or ASBOs, CRASBOs, Notices Seeking Possession to tenant, Eviction of tenant for actions of family, Demotion
- Frequent visitors: Injunction or ASBOs, CRASBOs, Notices Seeking Possession to tenant, Eviction of tenant for actions of visitors, Demotion
- Children: ASBOs, CRASBOs (if over 10 years old), Notices Seeking Possession to tenant, Eviction of tenant for actions of children, Demotion
An Injunction would prevent future riotous and violent behaviour. To obtain an Injunction there would have to be sufficient evidence to show the person has engaged housing related anti-social conduct capable of causing a nuisance or annoyance to neighbours or those lawfully in the vicinity. Alternatively, an Injunction can be sought against tenants on the basis of breach of their tenancy.
The conduct has to be “housing related anti-social conduct”. This raises several issues. Can you prove to the court the person’s behaviour was somehow linked to the fact they have a connection to your property?
If Tenant A travels from Liverpool to Manchester to take part in a riot this is not related to the housing management functions of you as a landlord or, a breach of tenancy however wrong the behaviour is.
If Tenant B loots and riots in the local shopping parade causing fear to your other tenants and damage to the shops you own this would be sufficient to meet the tests.
Once the tests can be met you must look at the available evidence. Is it clear from CCTV they were involved? Do you have witnesses? Is there a conviction? The conduct must be proven on the balance of probabilities; that is to say, it is more likely than not the individual engaged in the behaviour.
Once that has been established, consideration should be given to what you want to achieve. If this is a one off event then is an Injunction to prevent further riotous behaviour necessary? Are they likely to do this again? If the answer is no then the Injunction is unlikely to achieve much at all. However, if you act quickly to try to stop them engaging in future riots whilst the unrest continues then this may be an appropriate course of action. Food for thought.
An Injunction can only be obtained against persons over the age of 18 who have the mental capacity to understand the nature of effect of the Injunction. Check this out before you make the application.
In summary, injunction can be used to prevent people engaging in future riots, but is not really a suitable punishment for such behaviour where reoffending is not likely.
The ASBO has not been abolished yet! ASBOs are useful tools especially against those under 18 who cannot be made subject to an Injunction.
An ASBO can be sought if it can be proven beyond reasonable doubt the person behaved in an anti-social manner; namely a manner that has caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household and an ASBO is necessary to protect the public from anti-social acts.
An ASBO can be applied for by a landlord as either a free standing application in the Magistrates’ Court or, as an ancillary application to other proceedings, for example, possession in the County Court. There must be clear evidence of the behaviour to meet the strict test above.
Alternatively, if the perpetrators are being charged with criminal offences, it would be cheaper and easier to ask the Crown Prosecution Service to ask for a CRASBO which is an ASBO on conviction.
That being said, you must look at what you are trying to achieve. An ASBO places prohibitions on a person’s future behaviour. Is the behaviour likely to be repeated? What evidence do you have of that? If pure punishment is the aim then an ASBO may not be the right remedy.
Demotion is a deterrent to future anti-social behaviour, but falls short of actual eviction. It demotes a tenant to a less secure tenancy so if they cause ASB again they can be evicted relatively simply. This remedy is rarely used and is unpopular with the Courts.
Many housing providers are announcing they will seek possession as punishment for involvement in the riots. The previous comments about evidence apply equally here. Below is a checklist to consider when taking possession:
Is the perpetrator an assured or secure tenant?
- Do you have a copy of the tenancy agreement?
- Does the tenancy contain a clause prohibiting ASB covering the behaviour complained of?
- Are there any rent arrears or other breaches of tenancy? If yes, include in NSP.
- Are they already subject to a suspended/postponed possession order? If yes, seek legal advice.
- Any mental health issues? If yes, seek legal advice.
- Are they over 18? If no, seek legal advice.
Is the perpetrator a non-tenant?
- Is there evidence of them living at/visiting the property?
- Any mental health issues? If yes, seek legal advice.
- Is the tenant assured or secure tenant? If so, apply questions above also.
Evidence – what do you have?
- Direct witnesses
- Hearsay evidence
- Police disclosure
- Convictions – indictable offence or summary?
- Stolen goods at the Property
- Weapons at the property
Where did the conduct take place?
- Was it in the locality of the property?
- How far away was it?
- Is there housing stock nearby where the offence took place?
Is it reasonable to order possession?
- How serious was the action?
- Was the person involved on the periphery or a ring-leader?
- Has there been previous violent behaviour?
- Other remedies available short of possession?
- Has the perpetrator shown remorse?
- What is the impact of the behaviour on others?
- Possession should be seen as last resort.
Housing Minister Grant Shapps, was expected to make an announcement later about proposals to introduce new measures aimed at enabling social landlords to obtain possession against tenants including visitors and members of their household convicted of a criminal offence anywhere. This could remove some of the barriers to seeking possession set out above.
As set out earlier, the current ground for possession is restricted to conviction for serious offences committed in the locality of their home.
If the tenants are on starter tenancies, assured shorthold tenancies, introductory tenancies, non-secure tenancies or licences then it may be simpler to take action.
When is it appropriate to take action?
If the aim is to stop involvement in on-going civil unrest then an Injunction or ASBO may be the immediate response.
However, if punishment following clear evidence of participation is the aim then eviction may be the right response.