Dealing with Anti-Social Behaviour under the Renters Reform Bill
Given the two current examples in the city, both widely covered in the press, of Windsor House where owner responsibility sits with a defunct development company and the property in The Retreat plagued by squatters, rats and drug use, Alwin Oliver, Vice Chairman of PDPLA said; "Both of these cases, in which none of the parties are members of the PDPLA, illustrate that trying to recover a property on grounds of Anti-Social Behaviour (ASB) is all but hopeless, hence the need for a better procedure".
Martin Silman, chairman of PDPLA added "we have recently published detailed proposals that we would like to see courts adopt in relation to Anti-Social Behaviour cases, neighbours should not have to live with this, and landlords need better support from the authorities than they have now"
Like many HMO landlords and agents, I face complaints of anti-social behaviour (ASB) from tenants. Often the complainants will not approach ASB teams/wardens within the local authority and are even more likely to refuse to make statements to courts. It makes for an impossible situation, often tenants would simply rather leave, and the offending party will disregard, or be hostile to any advice or pleas from landlords. In fact, all too often there is a pattern of arrears or property damage as well.
A more robust and swift to access system is needed. A complaint can be made to court, but it is often slow and the evidential burden is never achieved even if a matter gets to court. Worse, it is often a discretionary ground.
The key to understanding ASB is to realise that it may be chaotic but it isn't random. By this I mean that there are some factors that are always present that lead to ASB (and from the defendants point of view, denial of the problem). These are what behavioural analysts call precursors and typically include;
- Use of tobacco, alcohol and other substance abuse
- Late rent payment or rent arrears
- Abusive or manipulative communication addressed at landlords or agents, including fabricated complaints of disrepair
- Violence including domestic violence
- Damage to the property
- Uncontrolled nonpriority spending
- Multiple debts (and possibly borrowing from illegal or doorstep money lenders)
My suggestion is that a questionnaire aimed at addressing the facts could be used as evidence to the courts.
At present, when a court receives a complaint of anti-social behaviour- on the rare occasions it does, the claimant, usually the landlord, has to prove on the balance of probabilities, that some form of anti-social behaviour has taken place, and then, because ground 14 (of a Section 8 eviction order) is a discretionary ground, that it is just and equitable for the defendant tenant to suffer repossession.
The problem is further exacerbated by complainants reluctance to make a statement to a court or partake in mediation for fear of retribution or "making things worse". Landlords also need a clear route to court, help understanding procedures and confidence to know it will not be a pyrrhic (or worse futile) exercise. If there is a single reason why ASB does not get addressed in rental properties, this is nearly always it.
Conversely, no tenant should lose their home on a single minor complaint but neither should co-tenants or neighbours be forced out of their home by ASB going unaddressed. Tenants should be in no doubt of the consequences of ASB. As things stand, there are virtually none. Everybody knows it has to change, the question is what can be done that can enable swift and effective solutions, without reinventing section 21.
By the same token the bar for access to justice should not be set so high as to be all but unattainable in the real world or be beyond the skill set of well briefed self-managing landlords.
Alwin's Suggested Solution (Fully Supported by the PDPLA)
Ironically, the solution may be under our nose! A sideways look at the delegated authorities conferred upon Deposit Protection Schemes Under the Housing Act 2004 may hold the key. One little known provision that applies to custodial schemes, is that if a landlord or agent seeks to recover the deposit, perhaps for rent arrears and the tenant fails to respond the funds cannot simply sit in limbo, awaiting a response that will never come.
In these circumstances it is open to the landlord (or their agent) to apply for release of the funds by using a "Statutory Declaration", known in the legal profession as a "Stat Dec".
The deposit schemes helpfully provide a template, which must be downloaded, completed and signed in front of a Solicitor or Notary Public. The solicitor or notary public will charge a fee, usually £50 and apply a seal or stamp to confirm that the document has been signed in their presence It is a formal process, designed to create a formal legal document, a bit like a witness statement or a will, for example, but for a specific purpose.
I suggest that the court procedures (technically Practice Direction 55, which deals with how possession cases are handled by courts and provides procedural guidance for claimants and defendants) could be amended, by the Master of the Rolls, immediately, as part of a pilot study, to allow landlords to make a Statutory Declaration where they have complaints. A form could be devised to make sure nothing has been missed.
An amendment to PD55, if agreed or recommended would enable a pilot to take place and procedures to get bedded in before legislation gets enacted, but these proposals should be in the body of the act in any event.
But judges are rightly independent, so while a pilot could, if agreed, provide a useful proving ground, the necessary legislation should not just be left to judges. That is the role of Parliament and all sides of the debate seek clear guidelines and robust procedures for dealing with ASB. Nor will it do to state it is a multi-agency problem, complicated by social deprivation or poor mental health. Batting the problem into the long grass is simply not an option.
A procedure for how courts should deal with ASB possession claims could take the form of an appendix or schedule to the act itself. This is hardly new territory. The Section 8 Grounds in the Housing Act 1988 (as amended) are set out in schedule 2 of the Act. Another less well-known example is given in Chapter 4 of Part 2 to the Housing and Planning Act 2016 (the 2016 Act), which confers power on the First Tier Tribunal (which is the body that hears appeals in these situations) to make rent repayment orders and gives detailed guidelines on how to proceed and calculate the amount of orders, to give 2 examples.
I suggest that the act could create a Statutory Declaration Procedure. The NRLA could play a part by providing a Statutory Declaration Pro Forma open to all (but with detailed guidelines available to members and making clear the serious nature of any false information) Perhaps linked from the MoJ website (as they do for money advice to Citizens Advice, for example).
Legislation should contain guidance, to the effect that the court MUST give sufficient weight to a Statutory Declaration in certain circumstances, either to make an outright or in less serious cases a suspended possession order. Effectively giving courts Mandatory grounds, discretionary or suspended grounds and guidance on when to dismiss possession claims. Given the gravity of the problem, at least at the extremes, ASB claims under the Statutory Declaration procedure should have a fast track.
As an HMO landlord, I am considered by the local authority a fit and proper person, at least to the extent that I do not have any convictions to prevent me being regarded as a fit and proper person. I like to think of myself as a committed landlord providing a service to my tenants, in exchange for rent. As such, a signed Statutory Declaration should carry some weight, particularly where the case must be decided on the balance of probabilities
Guidance should include that:
The court MUST make an order;
- Where the claim is undefended
- Where the defendant has been offered third party mediation and has refused
- Where the complaint is about threats of violence, theft or handling stolen goods
- Where there is significant disruptive noise or visitor behaviour, particularly at night
- Where there is damage to the property, or nearby property
- Where there is a parallel complaint under grounds 10 & 11 for rent arrears or late payments
- Where there is malicious or abusive communication between the tenant and one or more parties, including the landlord or their employees, contractors or agents (the agent can be a complainant in their own right)
- Where there has been other financial exploitation, including landlords tenants or neighbours
- Where terms of a suspended order have been breached
The Court MAY give a suspended possession order;
- Where mediation is being undertaken
- Where there is a single complaint, or isolated complaints
- Where the landlord, acting alone or on behalf of complainants, accepts this is reasonable
- Where addiction therapy is in place and being complied with, provided the landlord consents to this course of action
The court may of course dismiss the claim where insufficient evidence is brought or where the case can be defended
Access to justice for landlords should be much quicker than at present.
Once a Statutory Declaration has been signed and notarised, filing should be online with a response required in 7 days after service (as it is in British Colombia).
Mediation or non-engagement should not be available as a delaying tactic. Cases should be prioritised for hearings, usually within a further 7 days, unless the tenant is unavailable for example if in hospital or away from home and unable to return.
Undefended claims should be disposed of by Mandatory possession claims unless there are exceptional circumstances.
Guidelines could further state that mental health diagnoses does not act as a defence for ASB, although treatment may act as a mitigating factor, particularly if the landlord is willing to consider, or the court is minded to order of its own motion, a suspended possession order.
In any suspended order the consequences of further breach and how the court will dispose of further complaints should be clear to all parties.
Nor should counter claims be used to obstruct possession (but may be put before the court elsewhere)
For too long Section 21 has been used as a path of least resistance for dealing with ASB. It is now time for legislators to send a strong and clear message that Anti-Social Behaviour that blights tenants, neighbourhoods, landlords and agents alike will not be accepted as a normal part of a tenancy to be tolerated.
Historically ASB has been tolerated or hard to detect when tenants are being referenced, allowing a culture of people moving on and exploiting landlord after landlord, neighbourhood after neighbourhood. This also should be addressed. Over a period, with a combination of open banking referencing and artificial intelligence (perhaps checking social media from the applicants for abusive posts, specifically aimed at landlords or their agents) may become harder to hop from rental to rental and live a chaotic lifestyle.
But it is for society to tackle anti-social behaviour, landlords can only play a small part. At A recent forum for tackling rent arrears in Southampton, an academic speaker said "we don't really understand how some people get in rent arrears" A robust court process and questionnaire can only help, and could feed information into wider social policy efforts aimed at tackling ASB. It could also provide a much brighter light at the end of a much shorter tunnel for those landlords put in the unfortunate position of having to tackle ASB
As a final thought, I would like to remind readers of a very old promise given to the landlords of the day in the 13th Century, now replicated on the doors to the UK supreme court- "To no one will we delay or deny justice"
The words come from Magna Carta, Runnymede, 1215.
Giving effect to that promise cannot come too soon for neighbourhoods blighted by ASB.
Vice Chairman, PDPLA
The PDPLA supports landlords to achieve the highest standards through mentoring, training and peer support. We strongly believe the law fails to support both landlords and communities faced with Anti-Social Behaviour and they are actively lobbying for improvements in the law. More details and contact information: www.pdpla.com