Housing Update: When is a breach of tenancy “relevant”? by Jane Talbot

The High Court has considered the proper interpretation of s7 Housing Act 1988 in the recent appeal in the matter of Teign Housing v Richard Lane [2018] EWHC 40 (QB).

Teign Housing appealed a decision dismissing their application for possession of Mr Lane’s one bedroomed ground floor flat he occupied with his two dogs on the basis that the Judge incorrectly introduced a concept of “relevant breach” of the tenancy agreement when applying the test in s7 Housing Act 1988 thus wrongly found that certain breaches were not proved or, in the alternative, that the Judge was wrong to find that it was not reasonable, proportionate or a legitimate aim to order possession in light of Mr Lane’s disabilities (ie paranoid personality disorder).

The facts of the case were, briefly, Mr Lane had been a tenant of Teign Housing for some time and a move to this property was agreed in August 2016 after he had suffered anti social behaviour at his previous property.  The parties had agreed to fence of an area of land in the communal garden for the tenant’s dogs but other residents had not been happy with this decision.   After moving in, Mr Lane moved the gas flue and fixtures and fittings in the kitchen in breach of his tenancy agreement.  His position was that he was granted permission to do so or that he had an honest belief (due to his mental disorder) that he had such permission.   Following from this, neighbours complained about Mr Lane playing loud music.  Mr Lane installed CCTV, again, he believed with consent and neighbours complained about it pointing into their personal living areas.

As a result of concerns of asbestos exposure due to the works in the kitchen, Mr Lane was moved back to his previous premises.  When he returned to this property, he changed the locks without consent.  During a subsequent investigation, there was found to be problems with asbestos due to the works he had carried out.

Possession proceedings were issued on grounds 12 and 14 of Schedule 2 to the Housing Act 1988.  The proceedings were defended for the reasons set out above.

In the County Court, HHJ Carr dismissed the claim for possession finding that Mr Lane had an erroneous but honest belief that he was granted permission for the CCTV, alterations to the garden and to the house and therefore was not a “relevant breach” based on his mental health issues.  The Judge went on to say that even if that were not right, it would not be reasonable or proportionate to evict him based on the findings of breach he did make.   He found that the evidence was weak about noise nuisance and thus not made out.

The issues raised on appeal were that (1) the concept of “relevant breach” had no legal meaning and the Judge should have found those items proved (2) the Judge failed to take proper account of the fact that Mr Lane could not comply with the terms of his tenancy or the impact on other residents and (3) that the analysis of his mental health failed to involve a sufficient focus on the effect of Mr Lane’s behaviour on others.  A Respondent’s Notice was filed noting that if there were further breaches it would not be reasonable to order possession and any order would amount to disability discrimination.

S7(1) of the Housing Act 1988 provides “the court shall not make an order for possession of a dwelling-house let on an assured tenancy except on one or more of the grounds set out in Schedule 2 to this Act …. (4) if the court is satisfied that any of the grounds in Part II of Schedule 2 to this Act is established then … the court may make an order for possession if it considers it reasonable to do so”.

S9(2) of the same Act provides that “on the making of any order for possession of a dwelling-house let on an assured tenancy … the court … may (a) … suspend execution of the Order … (3) … on any such suspension the court, unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise he unreasonable may impose such other conditions as it thinks fit”. 

The court also referred to s9A which requires the Court to consider the impact on those other than the tenant in nuisance cases, the grounds (breach of tenancy – 12 and anti social behaviour – 14) and the test in s15/35 of the Equality Act 2010 which prohibits discrimination arising from a disability when carrying out activities relating to the management of premises, including eviction.

The relevant authorities were examined which the reader will be familiar with and cannot be rehearsed in full in this brief article.

Turning to the first point of appeal, the concept of “relevant breach”, the Court held that the Judge was wrong to find that the installation of CCTV, even with a mistaken but honest belief that he had permission, was not a relevant breach. There was a clear term in the tenancy preventing alterations without consent and that had been breached.  There is no such concept as “relevant breach”.  The same comments were made in relation to the allegation of dog fouling and alterations to the communal garden.  In relation to the lack of evidence of loud music, the Court held that the Judge was entitled to make that finding.

It was concluded, in relation to the breaches, that the Judge had found some breaches but should have recorded findings of the breaches above in addition.  The Court then turned to the issue of reasonableness. The Court found that the Judge did consider the effect on the other residents and accepted that the discretion afforded to the trial Judge was wide.  However, it was held that the Judge had failed to consider reasonableness in light of all of the breaches that were proved on the evidence, only considering a limited few breaches.  The Court found “in my judgment in circumstances where the Judge has erred by not finding further breaches of the tenancy agreement it is difficult to place weight on his conclusion that it would not reasonable or proportionate  to make an order for possession.  This is because it is apparent that the Judge did not have the opportunity to reflect on other relevant breaches of the tenancy agreement and their effect on other tenants, because he had failed to find those breaches”.

The Court held that it could not allow the appeal and find that possession ought to be ordered because the discretion was wide and fact sensitive and remitted it for retrial to enable all the issues between the parties to be addressed.