CHAPTER THREE – REASONABLENESS OF MAKING A POSSESSION ORDER
Some of the grounds in Schedule 2 of the Housing Act 1988 introduce a reasonableness test to the making of a possession order (such as, for grounds 10 and 11). There is no reasonable test for mandatory grounds (such as ground 8), and none for Section 21.
A possession order will be reasonable if it is reasonable in all the circumstances. There is some case law guidance as to what this means in practice, and other suggestions below as to what may be arguable. I do not limit the following table only to the question as it might apply to grounds 10 and 11.
|
Less reasonable |
Authority |
|
Notes for Form 3 were not served alongside the notice – the Notes contain considerable information to tenants |
Arguable |
|
The notice served was not the correct notice – information to tenants may be missing |
Arguable |
|
Rent arrears have only been caused by a benefit issue which is in the process of being resolved. |
Arguable |
|
The claimant is a Local Authority or Registered Provider of Social Housing, and they have not adequately followed the Pre-Action Protocol for Possession Claims by Social Landlords. |
Arguable |
|
Arrears have accrued but only because the tenant lost his job – he is about to restart work and will be in a position to start paying off the arrears. |
Arguable |
|
Arrears have accrued because of medical issues – these are being resolved, and once resolved the tenant will be able to start repaying the arrears. |
Arguable |
|
The tenant’s breach is not serious, or not repeated, or has been remedied. |
Opposite to Bristol City Council v Mousah, Court of Appeal (1997) |
|
Eviction would have particularly adverse consequences for this tenant as it is clear that he will not qualify for Local Authority rehousing on making a homelessness application |
London Borough of Lewisham v Adeyemi, Court of Appeal (1999) |
|
More reasonable |
Authority |
|
The arrears are very high |
Arguable |
|
There is no good reason for the arrears |
Arguable |
|
Possession for a long-term insistence on breaching the tenancy agreement |
Sheffield City Council v Green, Court of Appeal (1993) |
|
Possession for long-term anti-social behaviour towards neighbours (whether a breach of the tenancy agreement or simply falling under Ground 14) by the tenant’s child / family member |
Royal Borough of Kensington & Chelsea v Simmonds, Court of Appeal (1996) |
|
A “most serious breach” [of the tenancy agreement] – for example, drug dealing at the property |
Bristol City Council v Mousah, Court of Appeal (1997) |
|
It is clear that the defendant would be rehoused by the Local Authority on making a homelessness application |
London Borough of Lewisham v Adeyemi, Court of Appeal (1999) |
Nota Bene – If it is unclear whether or not the defendant would be rehoused after making a homelessness application then this question should not feature at all in the “reasonableness” test (Bristol City Council v Mousah, Court of Appeal (1997)) (London Borough of Lewisham v Adeyemi, Court of Appeal (1999)).
Sheffield City Council v Green, Court of Appeal (1993)
“The tenancy agreement provided in plain terms that the defendant was not allowed to keep a cat, dog or any other animal in the dwelling… [T]he defendant had for many years kept a dog, despite repeated refusals from the local authority [landlord]… It is only in a very special case that the court could properly refuse to give a landlord possession of a tenant who broke a covenant and had insisted on breaking it.
“[However, in this case, the defendant’s neighbours wanted to provide witness statements that the dog was “harmless and a friend”, but the defendant only raised this on appeal]… If the judge [at first instance] had had all the testimonials supplied and the witnesses had turned up as necessary to explain that the dog was harmless and a friend… it might have had some effect on the judge”.
Royal Borough of Kensington & Chelsea v Simmonds,
Court of Appeal (1996)
LORD JUSTICE SIMON BROWN: “[There is] no authority for the proposition that the tenant who has tried and failed to control his or her child is immune from a possession order… As to the justice of the position, it must be remembered that not only are the interests of the tenant and her family here at stake; so too are the interests of their neighbours. It would in my judgment be quite intolerable if they were to be held necessarily deprived of all possibility of relief in these cases, merely because some ineffectual tenant next door was incapable of controlling his or her household” [suspended possession order upheld].
Bristol City Council v Mousah, Court of Appeal (1997)
LORD JUSTICE BELDAM: “This was a case where there had been a most serious offence [drug dealing] committed over a period of three or four months at these premises [contrary to an express provision of the tenancy]… Where there is such a serious breach of a condition of the tenancy, it is only in exceptional cases that it could be said that it was not reasonable to make the order [for possession]” [Court of Appeal took the unusual step of substituting its own position on “reasonableness”].
[The court should not get too involved with the possible outcome of a homelessness application:] LORD JUSTICE BELDAM: “Evidence had been given by the appropriate housing officer that, if the respondent applied, his application would be dealt with on its merits. That, in my view, was all that the judge could properly take into account”.
London Borough of Lewisham v Adeyemi, Court of Appeal (1999)
LORD JUSTICE SEDLEY: “I am content to accept that if the case is at one of the two poles that I have described (that is to say cases in which an application for rehousing as homeless will manifestly succeed or not succeed) then there is no reason why the judge should not take that fact, because fact it will be, into account as part of the balance of factors by which he assesses the reasonableness of the possession order. But if all the evidence shows is that there would be, on a fresh application, an issue for the local authority to decide, then this court has no power to make a pre-emptive or prefigurative decision for the purpose of gauging whether it is reasonable for it to make a possession order”.