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Dealing with Nuisance

Problem tenants

Problem tenants have historically proved to be a major headache for landlords. Because the majority of tenancies in the private rented sector are taken by the 18-30 age group, a certain amount of revelry and youthful excess has to be expected, but serious problems start when there are continued complaints from neighbours and damage to the property.

Despite taking up an inordinate amount of the landlord's time, it is fair to point out that the problems arise from less than 10% of all tenants. Yet, government research found that 20% of housing managers' time is spent on dealing with nuisance behaviour.  A large percentage of complaints arise from noise made by amplified music, late night parties and the associated behaviour and activities of the same tenant's visitors when arriving and leaving the property. 
A number of measures have come into effect in recent years:

  • Housing Act 1996
  • Noise Act 1996
  • Introductory tenancies
  • Housing Act 1996

The Housing Act 1996 contained new powers to combat 'neighbours from hell' and anti-social behaviour, strengthening the landlord's grounds for possession based on nuisance, including behaviour within the locality of the tenant's property.  These new powers, open to both social and private landlords, have come as a relief to landlords and their tenants who suffered as a result of these nuisance neighbours.

Some landlords will argue that the new powers are irrelevant in the private rented sector since assured shorthold tenants have so little basic security of tenure.  However, recent moves to provide longer fixed-term tenancies will not move off the drawing-board unless such powers exist and landlords know how to use them.

New grounds

The Housing Act 1996 contained two new provisions to help guard against nuisance tenants:1

  • a new Ground 14
  • a new Ground 17

The effect of the new provisions is that landlords will face fewer difficulties in bringing possession actions based on nuisance, both in terms of the procedural requirements and in terms of the evidence that needs to be collected.

Ground 14
The Housing Act 1996 introduced a new discretionary ground for possession, Ground 14a:
'The tenant or a person residing in or visiting the dwelling-house -
(a)  has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or
(b)    has been convicted of -
(i) using the dwelling-house or allowing it to be used for immoral or illegal purposes, or
(ii)    an arrestable offence committed in, or in the locality of, the dwelling-house.'

In comparison to the old ground 14, there are a number of differences.
Firstly, the new ground strengthens the existing ground for possession based on nuisance and annoyance in two ways; so that it applies to behaviour within the locality of the tenant's property (previously only applied to the tenant's neighbours), and it also covers behaviour by visitors to the property.  Visitors and other people involved 'in lawful activityin the locality' are covered under these provisions so that all types of visitors and people working at or near the property receive protection including postmen, milkmen, shopkeepers as well as landlords and letting agents !  Any of these people can now complain and have their complaints considered as a ground for possession against any problem tenants.

Secondly, the new provisions make it possible for a landlord to evict a nuisance tenant for behaviour likely to cause nuisance and annoyance.  This makes it easier to bring evidence - a landlord can employ a professional witness rather than the victim of the behaviour.
Thirdly, there is a new provision to grant an order for possession on the basis that the tenant, or someone who visits the tenant has committed an "arrestable offence", either there or in the locality of the dwelling-house.  An "arrestable offence" is defined as an offence which may attract a prison sentence of five or more years.  Examples of arrestable offences include:

  • drug dealing
  • shoplifting, robbery or burglary
  • harassment or intimidation
  • criminal damage

Landlords may now commence proceedings immediately after the service of the notice (previously a requirement for 2 weeks) and this helps reduce the inherent delays in getting a tenant into court.

Ground 17
With an increasing intolerance of anti-social behaviour, landlords will inevitably find applications being made for tenancies on the basis of false information.  For example, a tenant might claim to have no previous landlord when in fact he had defaulted on a previous tenancy.  Similarly, the signature of the person offered as guarantor might turn out to be false because the tenant has forged the guarantor's signature.  The new ground 17 gives the landlord protection against such ruses.  The ground applies where:

'The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by -
(a)    the tenant, or
(b)    a person acting at the tenant’s instigation.'

Ground 17 is a significant additional ground which received little attention on its introduction, providing the court with the discretionary power of possession where the landlord was induced to grant a tenancy 'by a false statement made knowingly or recklessly'. 
Landlords can make increased use of written information obtained from the tenant prior to granting the tenancy.  Substantial inaccuracies in the information supplied can now provide the landlord with a ground for possession.

Noise Act 1996

New powers were introduced under the Noise Act 1996 and the Housing Act 1996 to deal with noise nuisance, and many landlords and local authorities have been quick to use them.  Several London councils set up dedicated 'noise teams' and have used the new powers to seize hi-fi equipment and take offenders to court with fines up to £1,000.  In only eight weeks, the new Southwark noise team has seized equipment from eight addresses and sent 12 other cases for prosecution (see previous article).

Using the new Powers
It should always be borne in mind that the above new grounds are discretionary so that not only will the landlord have to prove the case in court, but he will have to persuade the judge that the grounds are sufficiently substantive that it would be reasonable to grant possession.  In considering the question of reasonableness, the judge takes into account the facts of the case, the seriousness of the nuisance, the tenant's personal circumstances, as well as the balance of interests between tenant and landlord.
Accordingly, there are a number of important issues to consider when using the new powers:

1.  The landlord should, when bringing possession proceedings, still put the most reliance on using grounds where possession is mandatory (i.e. grounds 1 to 8), if these grounds are available.  For example, the tenant may also have over two months' rent arrears (Ground 8), or the landlord might be able to apply for possession under s.21 (assured shorthold tenancy coming to an end).  Where there are both mandatory and discretionary grounds available, it can be useful to include both.

2.  Because these new grounds are discretionary, it will be vital for the landlord to present sufficient and compelling evidence to the court that the tenant's behaviour is such that it would be reasonable to remove the tenant from the property. 
The landlord should also keep careful records to support his case.  The landlord should maintain a diary of any complaints, recording when the complaint was made, who by, and any action taken.  Copies of all correspondence and warning letters should be kept.
Unless the misdemeanour was particularly serious, the court would also expect a landlord to send at least one warning letter to the tenant, outlining the breach of the tenancy agreement and giving the tenant the chance to remedy the situation.

3.  Information contained on the tenant's application for a tenancy will play an important part in proving ground 17.  Landlords should not be shy in asking some searching questions on any application forms supplied to the tenant:

  • Have you ever been refused a tenancy or had possession action taken against you ?
  • Have you previously fallen into rent arrears ?
  • Have you any county Court Judgements or criminal convictions ?

Case law
In West Kent Housing Association Ltd v Davies, 1998, possession proceedings were brought under the new ground 14.  The tenants were found to be causing nuisance yet the landlord was only granted a suspended possession order (operative if the tenant re-offends) for two years (see Legal Update section).

Injunctions

Injunctions (interdicts in Scotland) can be useful when dealing with serious cases of nuisance and anti-social behaviour.  An injunction is an order from the court which can prohibit a person from doing something, and failure to abide by the terms is a criminal offence (contempt of court) attracting penalties such as a fine or imprisonment.

Injunctions can be sought by landlord or tenant and are made at the court's discretion.  Landlords can seek injunctions against:
their tenants to restrain a breach of the tenancy agreement
anyone who causes a nuisance to the landlord's property or services
trespassers on their land

Injunction applications can be heard more quickly than criminal proceedings and in emergencies, can be granted within hours. Also, the burden of proof required is less than for a criminal prosecution, and witnesses do not have to attend court for an interim injunction.
An application for an injunction against a tenant can also be made in possession proceedings.  This is advisable in nuisance cases as the tenant may otherwise continue to cause problems before the possession hearing.

Applying for an injunction
Interim injunctions can be obtained quickly in the County Court by completing the application form N16A and order N16.  Supporting evidence should be attached by way of affidavits, photographs and any other evidence which may be available and relevant to the application.  If the conduct of the tenant warrants an urgent application due to the fear of life or limb, or serious criminal activity, an ex parte (without notice) application may be made.

Combating nuisance behaviour

Commonly-used measures to protect landlords include:
GUARANTORS.  A surety is one of the landlord's most effective measures against problem tenants to guarantee the performance by the tenant of his obligations.  Where tenants on housing benefit are accepted, or there are other indications of higher risk, it is advisable to insist on a guarantor.  A properly drafted surety or guarantor agreement should be employed and credit checks taken on any person acting as a guarantor.

TENANCY AGREEMENT.  The tenancy agreement also plays an important part in dealing with nuisance behaviour.  The agreement should contain effective anti-nuisance clauses which prohibit damage to the property, illegal or anti-social use of the property and nuisance to neighbours.  The agreement might also seek to reduce night noise by placing time limits on the playing of instruments, hi-fis etc.

DEPOSITS.  Ensure that deposits are adequate and not eroded throughout the tenancy by off-setting damage or arrears.  Pursue any claims independently in order to protect the deposit.

VETTING.  Good vetting procedures are important but never completely fail-safe.  Previous landlords sometimes give good references in order to rid themselves of problem tenants.

Other effects
The new powers are being used by both social and private landlords.  Housing Associations and local authorities have been quick to remove some of their worst tenants and set up black-lists, effectively excluding such tenants from further lettings.  One result is that private sector landlords are increasingly being required to house younger people and problem tenants because of tougher selection criteria for housing in the social sector.  Yet, because of data protection regulations, it is not possible to share the information contained in these blacklists with private sector landlords, who will undoubted receive more than their fair share of problem cases.

Quiet enjoyment

While landlords and their agents are often quick to assume that tenants are generally responsible for noise and anti-social behaviour falling within the definition of 'nuisance', this is not invariably the case.  Landlords may also be liable in nuisance.
There is an implied covenant in every residential lease that the tenant is entitled to 'quiet enjoyment' of the property.  The term is often used to cover a variety of evils ranging from harassment by the landlord to the landlord's failure to repair.  Surprisingly, in a legal context, the words 'quiet enjoyment' do not mean noise-free enjoyment but enjoyment without interruption of possession or 'substantial interference' with the tenant's ordinary enjoyment.

Originally, it was thought that a breach of quiet enjoyment necessarily meant some physical interference by the landlord.  For example, in Lavender v Betts2, the landlord entered the tenant's premises and removed the windows and doors.  In Markham v Paget3, the landlord engaged in mining activities under the house, causing the basement to collapse.  Not surprisingly, in both cases, the courts held that the tenant's quiet enjoyment had been breached!

Interference and harassment by the landlord is now more widely interpreted under the Protection from Eviction Act 1977.  A landlord who cuts off the tenant's gas and electricity now risks falling foul of these harassment provisions despite there being no physical damage.  In Kenny v Preen [1963]4, a landlord sent threatening letters, banged on the door and shouted abuse at the tenant.  This was held to be a breach of the covenant for quiet enjoyment

Noise and the landlord's liability
The landlord is not normally responsible for an act of disturbance carried out by a third party.  Yet, there have been several cases, heard before the Court of Appeal where the tenant has held the landlord to be liable in nuisance where there was inadequate sound insulation between adjoining flats or dwellings owned by the same landlord.

In Sampson v Hodson-Pressinger and Another [1981]5 the occupier of a converted flat was awarded damages of £2,000 for the fundamental breach of quiet enjoyment; there was inadequate sound insulation between the flats (both owned by the same landlord) and the landlord was aware of the shortcoming.
Yet, in Southwark LBC v Mills [1998]6, the Court of Appeal came to the opposite conclusion on similar facts, deciding that the covenant of quiet enjoyment did not oblige the landlord to effect improvements.  Although it is accepted that landlords have a clear duty to repair and maintain, the courts are reluctant to imply a wider duty to improve (i.e. by adding sound insulation to meet current building standards).

The decision in Eamonn Guinan v London Borough of Enfield [1989]7 was more logical in its conclusions, since the noise nuisance was caused by disrepair.  The Court ordered the landlord to take up the recently laid carpet in the front living room, using an approved contractor; take up and examine the timber floor exposed; carry out such works as may be necessary to remove squeak and spring to the timbers, to include wedging, securing and, if necessary, insulation; carefully reinstate the carpet.  The evidence had established that the creaks indicated a breach of the implied covenant to enjoy, a breach of the covenant to repair and a breach of section 11 of the Landlord and Tenant Act 1985. 
Comment:
1.  It is important to consider installing effective noise insulation when carrying out conversion work involving adjacent flats (especially whilst the law on noise nuisance in this situation remains unclear).  Good noise insulation will enhance the quality of the accommodation and is generally inexpensive when done at the same time, but very costly if installed later.
2.  Any conversion work must be carried out according to current building regulations8 which nowadays do specify what levels of noise insulation are required between adjacent dwelling units.
3.  Where the landlord is also the person carrying out the conversion work, a claim for damages could be made in a case where inadequate sound insulation is as a result of poor materials or substandard work (see note 2 above) under the Defective Premises Act9 .

Pests
Pests such as insects and rodents are an occasional source of nuisance to residential occupiers but the landlord will not normally be responsible for such infestations. 
There are two notable exceptions; firstly the landlord is responsible if the infestation occurs from adjoining common areas which remain under the control of the landlord.  For example, the courts have held that a landlord would be responsible where cockroaches entered a tenants flat via the ductwork within the common areas and passages of a block of flats10.  Secondly, the landlord would be responsible for eradicating the pests if they were present prior to the commencement of the tenancy, or giving the tenant the option to withdraw from the tenancy11.

Damp & disrepair

Problems concerning condensation and damp are normally dealt with under the landlord's repairing obligations12.
There are only very limited cases where the law of nuisance will apply.  These are: 

1.  ADJOINING LAND.  Where a landlord retains part of the building and disrepair of that part causes interference with the tenant's enjoyment of the part let, the landlord may be liable in nuisance.  For example, if the landlord has retained control of the roof and guttering and fails to maintain them13.

2.  STATUTORY NUISANCE.  Where conditions are so poor as to be 'prejudicial to health', then a statutory nuisance exists.  In one example14, a flat suffered severe condensation, dampness and mould  growth although technically there was no disrepair.  The tenant brought an action on the grounds of statutory nuisance forcing the landlord to install adequate heating and ventilation.

References
1.  These amend the original grounds contained in Schedule 2 to the Housing Act 1988.
2.  Lavender v Betts [1942] 2 All ER 72.
3.  Markham v Paget [1908] 1 Ch 697
4.  Kenny v Preen [1963] 1 QB 499
5.  Sampson v Hodson-Pressinger and Another[1981] 3 All ER 710.
6.  Southwark LBC v Mills [1998] 45 EG 151.
7.  Case unreported.
8.  Building Regulations 1991. Approved Document E: Airborne and Impact Sound.
9.  s. 1, Defective Premises Act 1972.
10.  Habinteg Housing Association v James (1995) 27 HLR 299 CA.
11.  Smith & Marable, (1843) 11 M&W 5.
12.  s.11, Landlord and Tenant 1985.
13.  Tennant Radient Heat Ltd v Warrington Development Corp (1988) 11 EG 71.
14.  Greater London Council v London Borough of Tower Hamlets (1984) 15 HLR 54.