The Law Commission

PART 9

PROHIBITED CONDUCT AND ANTI-SOCIAL BEHAVIOUR

INTRODUCTION^[1]

9.1      Landlords have long sought to use tenancy agreements to control some forms of tenant behaviour. Terms in agreements prohibiting the playing of music after certain hours are common. In addition, many leases have contained covenants prohibiting the use of premises for criminal or immoral purposes.

9.2      In recent years, new social issues have come to public attention which have effectively extended the range of situations in which the law has sought to control the behaviour of tenants. Perhaps the clearest example is that of domestic violence. In addition to the development of general rules of law designed to prevent domestic violence and deal with the consequences of domestic violence, there has for many years been available a ground for possession enabling landlords to seek possession against a tenant found to have committed domestic violence.

9.3      In our original Consultation Paper^[2] we made a number of proposals relating to the regulation of occupier behaviour which proved very controversial. We were particularly criticised for linking proposals for the reform of housing law to broader issues relating to the control of anti-social behaviour. In the light both of these criticisms, and the fact the Government policy relating to anti-social behaviour has developed rapidly, we have modified our approach.^[3] This approach builds on the current law, but seeks to rationalise and clarify it.

9.4      In essence, we recommend that:

(1) all occupation contracts should contain a prohibited conduct term;

(2) breach of the term will justify the institution of possession proceedings in the normal way;

(3) landlords can also seek injunctions for breach of the term;

(4) the grant of an injunction to a community landlord can be linked with an order excluding the person injuncted from the premises, or from any area specified in the injunction,^[4] or requiring the person injuncted to exclude any other person from the premises;

(5) similarly a power of arrest may be attached to the injunction;

(6) injunction proceedings and possession proceedings can be dealt with together;

(7) landlords can seek the demotion of a secure contract-holder to a standard contract as an alternative to eviction.

9.5      Our objective is to strike an appropriate balance between the interests of contract-holders and their families; of neighbours and others in the vicinity of the contract-holder; and of the landlord. We accept that there are circumstances in which firm and speedy action is required to stop or prevent some wholly undesirable act from taking place. At the same time, and as many emphasised in their responses to us, we want to ensure that families whose behaviour is causing distress and alarm to others can receive the assistance they need to change their behaviour to something more socially acceptable.

9.6      Although the Bill does not provide specifically for the repeal of any other statutory provisions, these new provisions would supersede section 153D of the Housing Act 1996 (injunction against breach of tenancy agreement), which could therefore be repealed. Clause 214 of the Bill also provides for the repeal of s 153A(4)(d) of that Act.

PROHIBITED CONDUCT Fundamental term

9.7      All occupation contracts contain a fundamental term relating to prohibited conduct. There are four elements to the term.

(1) A contract-holder may not use or threaten to use violence against a person lawfully living in the premises,^[5] or do anything which creates a risk of significant harm to such a person.^[6]

(2) A contract-holder may not engage or threaten to engage in conduct that is capable of causing nuisance or annoyance to:

(a) a person living in the locality of the premises; or

(b) a person engaged in lawful activity in, or in the locality of, the premises.^[7]

(3) A contract-holder may not use or threaten to use the premises, or any common parts that they are entitled to use under the contract, for criminal purposes.^[8]

(4) The contract-holder may not allow, incite or encourage others who are residing in or visiting the premises to act in these ways (or allow, incite or encourage any person to act as mentioned in (3)).^[9]

Unlike most other fundamental terms, this one may not be modified or varied. In addition, the appropriate authority has the power to amend the fundamental provision by order.^[10] Enforcement Possession proceedings

9.8      Breach of the term can trigger proceedings for possession in the normal way. But in this case, exceptionally, proceedings can be started on the same day as the landlord gives the possession notice.^[11]

Injunction

9.9      In cases where contract-holders engage in activities in breach of the term of the contract, more immediate action may also be required. The Bill therefore enables the landlord to apply for an injunction to stop the contract-holder acting in breach of the term.^[12] The injunction may be granted for a fixed period, or until varied or discharged.^[13] An injunction may be sought ex parte.^[14] In such a case, the court must give the contract-holder the opportunity to make representations as soon as reasonably practicable.^[15]

Exclusion order

9.10      In addition to the ability of all landlords to seek an injunction for breach of the fundamental term, a community landlord or registered charity may also seek an exclusion order. This may be granted in a case where the court grants an injunction and:

9.11      the conduct in question involves the use or threatened use of violence; or

9.12      there is a risk of significant harm to any person.^[16]

9.13      The exclusion order may prohibit the contract-holder against whom it is made from entering or being in:

9.14      any premises specified in the injunction (including the premises subject to the occupation contract); or

9.15      any area specified in the injunction.^[17]

9.16      The injunction may also require the contract-holder to exclude from the premises subject to the occupation contract any person specified in the injunction.^[18]

Power of arrest

9.17      Where a court grants an injunction to a community landlord or a registered charity it may also attach a power of arrest.^[19]

9.18      Where a landlord has sought an ex parte injunction, in deciding whether to attach a power of arrest, the court must consider:

9.19      whether it is likely that the landlord will be deterred or prevented from seeking the attachment of a power of arrest if the court does not attach it immediately; or

9.20      whether the respondent is aware of the proceedings but is deliberately evading service, and the landlord or another person will be seriously prejudiced if the decision to attach a power of arrest is delayed.^[20]

If the court attaches a power of arrest at this point, the respondent must have the opportunity to make representations as soon as reasonably practicable.^[21]

9.21      The power of arrest may be exercised by a constable who has reasonable cause to suspect that a person is in breach of the term or in contempt of court.^[22] The constable must inform the landlord,^[23] and bring the person before a relevant judge within 24 hours.^[24] If an injunction was granted without a power of arrest attached, and the landlord thinks the injunction is being broken, the landlord may apply to the relevant judge to issue an arrest warrant.^[25]

9.22      Following arrest, the court has power to remand the respondent,^[26] and also to remand for medical examination if it seems a medical report may be required.^[27]

Imposition of standard contract

9.23      Where a community landlord or registered charity has entered into a secure contract, and the contract-holder has broken the prohibited conduct term, the landlord may apply to the court for an order imposing a standard contract in place of the secure.^[28] This procedure, effectively demoting the contract-holder, may be used as an alternative to eviction where a landlord wants to work with the contract-holder to improve behaviour.

9.24      The court may not make this order unless it is satisfied that:

9.25      the contract-holder is in breach of the term;

9.26      it would have made an order for possession on the breach of contract ground in reliance only on this breach;

9.27      the landlord will provide a programme of social support for the contract-holder, designed to prevent prohibited conduct; and

9.28      it is reasonable to make the order.^[29]

9.29      Before the court can make an order under these provisions, either the landlord must have given the contract-holder notice that such an order would be sought, or the court must consider it reasonable to dispense with the notice requirement.^[30]

9.30      Where a standard contract is imposed by order of the court, the contract is called a "prohibited conduct standard contract". The terms of the new contract are in essence those of the secure contract subject to the necessary detailed amendments.^[31]

9.31      Special powers are attached to a prohibited conduct standard contract designed to give the landlord and contract-holder the time to work together to improve behaviour. Thus, the prohibited conduct contract is to last for a "trial period". This is 12 months from the start of the contract,^[32] unless the court orders a shorter period,^[33] or unless an extension to the trial period is authorised.^[34] The maximum period for the trial period is 18 months.

Promotion to a secure contract

9.32      At the end of the trial period, the prohibited conduct standard contract is automatically converted back to a secure contract.^[35] This reflects our general view that those who would normally expect the security of a secure contract should not be exposed indefinitely to the relative uncertainties of the standard contract. Thus if the attempts of the landlord to improve behaviour appear not to be working, the landlord will have to address the question whether towards the end of the trial period it takes possession proceedings against the contract-holder, or allows the contract-holder to regain full security of tenure.

Simultaneous proceedings

9.33      There is specific provision enabling a landlord to combine proceedings for breach of an injunction and possession proceedings.^[36] There is also provision enabling proceedings for possession to be combined with proceedings for an order to impose a prohibited conduct standard contract.^[37]

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Note 1    Anti-social behaviour is discussed in Part 15 of Renting Homes (2003) Law Com No 284.    [Back]

Note 2    Renting Homes 1: Status and Security (2002) Law Commission Consultation Paper No 162.    [Back]

Note 3    See Renting Homes (2003) Law Com No 284, Part 15.    [Back]

Note 4    This is similar to the power in section 153C of the Housing Act 1996, inserted by the Anti-social Behaviour Act 2003, but by requiring a risk of significant harm, as opposed to a significant risk of harm, arguably sets a higher threshold. The courts will examine applications for such exclusion orders carefully, to see whether they are proportionate in the circumstances: see Moat Housing Group v Harris and Hartless [2005] EWCA Civ 287.    [Back]

Note 5    Cl 51(1).    [Back]

Note 6    Cl 51(2).    [Back]

Note 7    Cl 51(3).    [Back]

Note 8    Cl 51(4). We have dropped reference to the use of premises for “immoral purposes” on the basis that this phrase is vague and is in any event covered by the other provisions.    [Back]

Note 9    Cls 51(5) and (6).    [Back]

Note 10    Cl 62.    [Back]

Note 11    See above, at para 4.52(1).    [Back]

Note 12    Cls 52(1) and (2). Where there are joint contract-holders, the injunction may be applied for and granted in respect of all of them, or in respect of those specified in the application or injunction: cl 52(3).     [Back]

Note 13    Cl 52(4). Discharge or variation may be on application by either the landlord or the contract-holder(s) against whom the injunction was made: cl 52(5).    [Back]

Note 14    Without notice to the contract-holder: cl 52(6).    [Back]

Note 15    Cl 52(7).    [Back]

Note 16    Cl 53(1).    [Back]

Note 17    Cl 53(2).    [Back]

Note 18    Cl 53(3).    [Back]

Note 19    Cl 54(1). The period for which this power lasts may be shorter than the period of the injunction: cl 54(2). The court has power to vary or discharge the power, on the application either of the landlord or the contract-holder: cls 54(3) to (5).    [Back]

Note 20    Cls 55(2) to (4).    [Back]

Note 21    Cl 55(5).    [Back]

Note 22    Cl 56(1).    [Back]

Note 23    Cl 56(2).    [Back]

Note 24    Cl 56(3). Christmas Day, Good Friday and Sundays do not count: cl 56(4). The relevant judge is a High Court judge if the injunction was granted in the High Court; otherwise any county court judge or district judge: cl 63(2).    [Back]

Note 25    Cls 56(5) and (6). The warrant cannot be issued unless the landlord’s application is substantiated on oath and the relevant judge has reasonable grounds for believing the person against whom the injunction was made has failed to comply with it: cl 56(7).    [Back]

Note 26    Cl 57. The power to remand is subject to detailed provisions set out in sch 3 to the Bill.    [Back]

Note 27    Cl 58.    [Back]

Note 28    Cls 59(1) and (2).    [Back]

Note 29    Cl 59(3).    [Back]

Note 30    Cl 60(1). The notice must give particulars of the conduct in respect of which the order is sought; and state that proceedings will not be started until after the date specified in the notice (which may be the same date as the day on which the notice was given), and will not be started more than six months after the date on which the notice was given to the contract-holder: cls 60(2) and (3).    [Back]

Note 31    The rules are set out in cl 61.    [Back]

Note 32    Cl 103.    [Back]

Note 33    Cl 105.    [Back]

Note 34    Cl 104.    [Back]

Note 35    Cl 98.    [Back]

Note 36    Cl 191(1).    [Back]

Note 37    Cl 60(4).    [Back]

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