Just Nuisance
Able Seaman "Just Nuisance" was one of the most famous great danes of all time. His exploits in Simonstown, South Africa, are recorded in a book of that title by Terence Sisson. Inducted shortly before the outbreak of the Second World War and buried on 2 April 1944, with full naval honours, he was a legend in his own lifetime. Unfortunately, nuisance is not a legend in housing law. It is a pernicious and growing problem between neighbours which is recognised and further addressed in the 1996 Housing Act.Nuisance Defined
Like a great dane, nuisance is easily recognised, but difficult to describe. As early as 1851, in Walter v Selfe, nuisance was defined as "an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober, simple notions among English people".Housing Act 1996
Since 28 February 1997, most landlords in the public and private sector have increased powers to seek possession for nuisance or annoyance to neighbours or any person residing, visiting or otherwise engaging in a lawful activity in the vicinity. For secure and assured tenancies, Ground 2 in the 1985 Housing Act has been repealed and substituted by section 144 of the 1996 Act. While the order for possession remains discretionary and is subject to the test of "reasonableness", the new Ground 2 of Schedule 2 and amended Ground 14 of Schedule 2 of the Housing Act 1988 is widened. They now include not only the conduct of the tenant but also a person residing in the dwelling, or a visitor. The tenant is now akin to the paterfamilias of the Romans and responsible for the conduct of all those within his domain as head of the household. The paterfamilias is likely to be evicted if any of those within his control conduct themselves not only in a manner to cause nuisance, but likely to cause such an affront. Nor is it necessary, as a matter of evidence, to call as a witness the aggrieved person. Anyone can be called to say what type of behaviour occurred and if it was likely to cause nuisance or annoyance. Some Local Authorities and other social landlords have engaged professional noise and nuisance "hit" squads, who can react to complaints with recording and decibel apparatus, thus protecting the anonymity of complainants and giving the required evidence in court.
The conduct complained of must have occurred in the locality of the dwelling. "Locality" is not defined and is left to the discretion of the court. It obviously means the place where the dwelling is situated, but is wider than "vicinity" as that word was replaced during the Bills passage through Parliament so as to catch anti-social behaviour in as wide a net as possible.
Notice Period
Section 147 of the 1996 Act also repeals and substitutes a new section 83 into the 1985 Housing Act. Subsection (3) authorises the court to dispense with notice of possession proceedings for secure and assured tenancies and to begin possession proceedings immediately in the event of nuisance or other anti-social behaviour. It is not yet clear when this process will be exercised, no doubt it will only be in cases of urgency, where, for example, health, bodily injury or destruction of property is immediately at risk and can be met with ex parte injunctive relief pending full trial.
Caution is the watchword in what is a draconian remedy. No doubt the courts will quickly establish the parameters of the relief. Those landlords who do not convince the court that an order should be immediately made will suffer, not merely a failure to obtain possession or an injunction but may find themselves having to pay tenants defence costs. Particularly where there has been an abuse of the process, for example, where Ground 14 is alleged in addition to another ground, merely to speed up the proceedings, and it is found that Ground 14 has not been made out.
A section 8 notice should be served on the tenant in all but the most urgent proceedings, as the "fast track" procedure, dispensing with the notice seeking possession, can only be used if the court considers it 'just and equitable' to do so. The procedure is to issue the section 8 notice, specifying ground 14 (and any other additional grounds), giving particulars which give rise to the application and that proceedings for possession may begin immediately. The notice will specify a date sought by the landlord as the date on which the tenant is to give up possession, not earlier than the date of service of the notice. For secure tenancies, the eviction order must not be sooner than four weeks from the service of the notice, unless the circumstances are so grave that leave is sought to utilise the 'fast track' procedure.
Social Landlords
New ground 14A, allowing a landlord to recover possession where a partner leaves the property because of the other partners violence, or threats of violence to the partner, or a member of the family of the partner where the court is satisfied that the partner who left is unlikely to return, only applies to a landlord who is a charitable Housing trust or registered social landlord. It is not available to the private landlord.
Procedures
Managing agents would be wise to have in place an office procedure relating to nuisance complaints and other anti-social behaviour. The complaint should be referred to a senior member of staff who should obtain full details of date, time, place and type of anti-social behaviour and how long it lasted. Are there any other witnesses? If so, names, addresses and telephone numbers, if any are known, should be recorded. Depending on the nature and extent of the complaint, the aggrieved party should be asked if they are prepared to be identified. If not, the tenant will almost certainly know, or guess, who complained. Either way, the managing agent should write to the tenant setting out the details of the allegation and drawing attention to any relevant restrictive covenant in the lease. For example, loud music, use of washing or dishwasher machines between 11.00 p.m. and 8.00 a.m., and asking the tenant to desist. The complainant should be kept informed and advised to keep a log of any further "material inconvenience" with full details and information relating to any witnesses. Any other positive evidence such as recordings, cine, camcorder, or even still photographs can be invaluable, just as they are to support an inventory and general condition of property.
Other remedies
Nuisance encompasses not merely noise and anti-social actions, it can include harassment, rubbish and litter dumping, sexual and racial discrimination and a failure to control animals. The Environmental Protection Act 1990 requires a Council to act where noise disturbance is prejudicial to health, or a nuisance. Failure by the Council to take proceedings allows a private individual to apply to a magistrates' court for an abatement order, while the Noise Act 1996 gives Council officials new summary jurisdiction, if adopted, to deal with noise disturbance at night.
Criminal Residents
The previous Housing Acts allowed possession proceedings where the dwelling had been used, or allowed to be used, for immoral or illegal purposes and a conviction had been obtained. The 1996 Act now extends the right on the basis of anyone living or visiting the accommodation who has been convicted of an "arrestable offence" committed in, or on the locality of, the dwelling. This is an offence for which an adult may be sentenced to imprisonment of five years or more and would include drug and public order offences, shoplifting, theft and using a motor vehicle without the consent of the owner.
Noise
Managing agents are aware that conversions of pre 1919 houses, completed up until the late 1980s, were not always well insulated against noise. Occupiers cannot be held liable for nuisance if acting reasonably, although their activities are the source of the noise - see Sampson v Hodson-Pressinger and Another [1981] 3 AER 710. It is all a question of reasonableness. Quiet enjoyment does not mean an absence of noise, it means an absence of unreasonable noise sufficient to cause a nuisance to plain and sober people If your great dane barks incessantly during the night, that's just nuisance.