Dealing with Tenancy Breaches - Devonshires · 2016-04-22 · tenant has breached the term of the...
Transcript of Dealing with Tenancy Breaches - Devonshires · 2016-04-22 · tenant has breached the term of the...
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Dealing with Tenancy Breaches
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Dealing with Tenancy Breaches
Samantha Grix
Devonshires Solicitors
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Types of Breaches
• Anti-social and/or criminal
behaviour
• Rent arrears
• No access
• Tenancy fraud
• Hoarding
• Damage
• Unauthorised works
• Anything else?
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Injunctions
An Injunction can be brought:
1. Within existing proceedings
2. As a free standing claim (Part 8 Claim)
3. Under a Statutory Provision (e.g. an ASB Injunction)
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Part 8 Injunction
• An injunction to rectify a breach of tenancy
– N.B if the breach relates to ASB then Part 8 would not be the most
appropriate cause of action.
• Examples of when you would use a Part 8 Injunction:
– Unauthorised works or damage
– Running a business from the Premises
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Part 8 Injunction
• Need to prove on the balance of probabilities that the
tenant has breached the term of the tenancy.
– First hand evidence from witnesses
– Photographs
– Documents from relevant third parties such as the
LA, Environmental health, surveyor etc.
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Part 8 Injunction
• N1 Claim Form
• Fully pleaded particulars of claim
• Witness statement(s) supporting the action and detailing all of
your evidence.
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Part 8 Injunction
• What terms can you obtain?
– Prohibitions from taking a particular action, or
– Requirement to take a particular action
• Breach of the Order amounts to contempt of court
– Custodial sentence and/or
– Fine
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Injunctions for Anti-Social Behaviour
• Anti-Social Behaviour Crime & Policing Act 2014
• Make provision for tackling Anti-Social Behaviour
crime and disorder, including provision for recovery of
possession.
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Anti-Social
Behaviour Crime
and Policing Act
2014
1. Injunctions
2. Criminal
Behaviour Orders
3. Dispersal
powers
4. Community
protection
6. Local
involvement
and
accountability
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Anti-Social
Behaviour Crime
and Policing Act
2014 (Cont.)
7. Dangerous
dogs 8.Firearms 9. Protection
from sexual harm
and violence
10. Forced
marriage
11. Policing etc. 12. Extradition
13. Criminal
Justice and
Court fees
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The Anti-Social Behaviour Crime and Policing Act
2014: Where Are We Now?
• Parts of the Act came into force on 13 May 2014 and
14 July 2014.
• Parts 2-6 come into force on 20 October 2014
• Part 1 (Civil Injunction) deferred to 23 March 2015.
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Injunction
• Part 1, Section 1.
• This section caused the most controversy.
• Subsequently revised and amended in the House of
Lords, apparently in order to protect carol singers,
nudists, bell ringers and trick or treaters!
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The Test
• A Court may grant an Injunction against a person aged
10 or over if two conditions are met:
• The first condition: The Court is satisfied on the
balance of probabilities that the Respondent has
engaged or threatens to engage in Anti-Social
Behaviour
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The Test (cont)
• The second condition: The Court considers it just
and convenient to grant the Injunction for the purpose
of preventing the Respondent from engaging in Anti-
Social Behaviour.
• This is a new criteria but in reality shouldn’t affect a
landlord’s ability to obtain an injunction as the court
always has reasonableness in mind.
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Meaning of Anti-Social Behaviour
• Section 2(1) – “Anti-Social Behaviour” means:
a) Conduct has caused or is likely to cause
harassment, alarm or distress to any person; or
b) Conduct capable of causing nuisance or
annoyance to a person in relation to that
person’s occupation of residential premises; or
c) Conduct capable of causing housing related
nuisance or annoyance to any person
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Meaning of Anti-Social Behaviour (Contd.)
• Section 2(1)(b) applies only where the Injunction under
Section 1 is applied for by:
a) A Housing Provider
b) A Local Authority
c) A Chief of Police
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Meaning of Anti-Social Behaviour (Contd.)
• In section 2(1)(c) “housing related” means directly or
indirectly relating to the housing management
functions of:
a) A Housing Provider
b) A Local Authority
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Meaning of Anti-Social Behaviour (Contd.)
• The housing management functions include:
a) Functions under enactment
b) Powers and duties of the Housing Provider or
Local Authority as the holder of an estate or
interest in housing accommodation
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Purpose of the Injunction
• The Injunction may:
a) Prohibit the Respondent from doing anything
described in the Injunction
b) Require the Respondent to do anything
described in the Injunction
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Purpose of the Injunction (contd)
• The Injunction must specify the period for which it has
effect or state it has effect until further Order
• In the case for an Injunction granted before the
Respondent has reached 18 a period must be
specified of no more than 12 months.
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Jurisdiction
• In the case of a Respondent under 18 – the Youth
Court
• In any other case – The High Court or County Court
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Section 3 - Positive Requirements
• The Court has a power to make positive requirements
in an Injunction.
• The Order must specify the person responsible for
supervising compliance with the requirement.
• Before including a requirement the Court must receive
evidence about its suitability and enforceability.
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Section 4 - Power of Arrest
A Court granting an Injunction may attach a Power of
Arrest to a prohibition or requirement if the Court thinks
that –
a) The ASB in which the Respondent has engaged
or threatens to engage, consists of or includes the
use or threatened use of violence against other
persons, or
b) There is a significant risk or harm to other persons
from the Respondent.
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Section 4 - Power of Arrest (contd)
• “Requirement” does not include one that requires a
respondent to participate in a particular activity i.e
parenting classes.
• The power of arrest can be for shorter period that the
prohibition or requirement it relates to.
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Section 5 - Who can apply for an Injunction?
a) Local Authority
b) Housing Provider
c) Chief Officer of Police
d) Chief Constable of the British Transport Police Force
e) Transport for London
f) The Environment Agency
g) The Natural Resources Body for Wales
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Who can apply for an Injunction? (Contd.)
h) Secretary of State exercising Security Management
Functions or a special health authority exercising
security management functions on the direction of the
Secretary of State or;
i) Welsh Ministers exercising the same functions as set
out above
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Who can apply for an Injunction? (Contd.)
• A Housing Provider may make an application only if
the application concerns ASB that directly or indirectly
relates to or affects its housing management functions.
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Section 6 - Applications Without Notice
• An application may be made without notice and if
made without notice the Court must either:
a) Adjourn the proceedings and grant an interim
Injunction; or
b) Adjourn the proceedings without granting an
interim Injunction; or
c) Dismiss the application
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Section 7 - Interim Injunctions
• Where the Court adjourns the hearing of an
application the Court may grant an Injunction lasting
until the final hearing of the application or further
Order.
• An interim Injunction made at a hearing where the
Respondent was not given notice may not have the
effect of requiring the Respondent to participate in
particular activities.
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Section 8 - Variation or Discharge of Injunctions
• The Court may vary or discharge an Injunction Order
on the application of the Claimant or Respondent
• The Court has the power to:
– include additional prohibitions or requirements
– extend the period for which a prohibition or
requirement has effect
– attach a Power of Arrest
– extend the period for which a Power of Arrest has
effect.
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Section 9 - Arrest Without Warrant
• A Power of Arrest may be attached to a provision of
the Injunction whereby a constable may arrest the
respondent without warrant if he or she has
reasonable cause to suspect the respondent is in
breach of the provision.
• The person arrested must be brought before the Court
within 24 hours
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Arrest Without Warrant (Contd)
• The appropriate Court will be the County Court if the
Injunction was granted by the County Court.
• If the Injunction was granted by a Youth Court but the
Respondent is 18 or over it will also be dealt with by
the County Court.
• Otherwise, it must be brought before a Justice of the
peace.
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Section 13 - Power to Exclude Person from Home
in Cases of Violence or Risk of Harm
• An Injunction may exclude a respondent from the
place where he or she normally lives only if –
a) The respondent is 18 or over
b) The Injunction is granted on the application of a:
i) Local Authority
ii) Chief Officer of Police for the area that the
premises are in, or
iii) The premises are owned or managed by a
Housing Provider, that Housing Provider and;
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Power to Exclude Person from Home in Cases of
Violence or Risk of Harm (Contd)
c) The Court thinks that:
i. The ASB in which the respondent has engaged or
threatens to engage consists of or includes the
use or threatened use of violence against other
persons or;
ii. There is a significant risk of harm to other persons
from the respondent.
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Section 14 - Requirements to Consult
• Before applying for an Injunction:
– If the respondent is under 18 you must consult the
Local Youth Offending Team.
– Inform any other Body, or individual if the applicant
thinks appropriate, of the application.
• This does not apply to a without notice application.
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Requirements to Consult (Contd.)
• Where the Court adjourns a without notice application
before the date of the first on notice hearing the
Applicant must consult the Local Youth Offending
Team about the application if the Respondent will be
aged under 18 on that date;
• Inform any other Body or individual the Applicant
thinks appropriate of the application.
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Section 16 - Special Measures for Witnesses
• The Act makes provision for special measures in the
same way as in the Youth Justice and Criminal
Evidence Act 1999 to apply to Injunction proceedings.
• Special measures can be applied for to assist
vulnerable and intimidated witnesses.
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Possession Proceedings
Rebecca Brady
Devonshires Solicitors
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Possession
• Service of notice is precursor:
– NOSP
– NTQ
– Section 21 Notice
• Claim in the County Court
• Plead Grounds for Possession
• Need to get the right ground depending on the breach
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Legislation
• Secure tenancies – Housing Act 1985
• Assured tenancies – Housing Act 1988
• Grounds are listed in Schedule 2 of each Act
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Discretionary Grounds vs. Mandatory
Grounds/Claims
• Discretionary grounds = If ground made out, court has
very wide discretion as to whether or not to make an
order
• Mandatory grounds/claim = If ground/claim made out,
court must make an order except in very limited
circumstances
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Common Discretionary Grounds For Possession
• Secure Tenancy
• Ground 1 – rent arrears or other breach of tenancy
• Ground 2 – ASB/nuisance/annoyance/indictable
conviction
• Assured Tenancy
• Grounds 10 and 11 – rent arrears
• Ground 12 – other breach of tenancy
• Ground14 - ASB/nuisance/annoyance/indictable
conviction
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Secure - Ground 1
• Rent lawfully due from the tenant has not been paid or an
obligation of the tenancy has been broken or not performed.
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Secure - Ground 2 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,
(aa)has been guilty of conduct causing or likely to cause a nuisance or annoyance to
the landlord of the dwelling-house, or a person employed (whether or not by the
landlord) in connection with the exercise of the landlord’s housing management
functions, and that is directly or indirectly related to or affects those functions, 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 indictable offence committed in, or in the locality of, the dwelling-house.
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Assured – Ground 10
• Some rent lawfully due from the tenant—
• (a)is unpaid on the date on which the proceedings for
possession are begun; and
• (b)except where subsection (1)(b) of section 8 of this
Act applies, was in arrears at the date of the service of
the notice under that section relating to those
proceedings.
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Assured – Ground 11
• Whether or not any rent is in arrears on the date on
which proceedings for possession are begun, the
tenant has persistently delayed paying rent which has
become lawfully due.
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Assured - Ground 12
• Any obligation of the tenancy (other than one related
to the payment of rent) has been broken or not
performed.
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Assured - Ground 14
• 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,
(aa) has been guilty of conduct causing or likely to cause a nuisance or annoyance to
the landlord of the dwelling-house, or a person employed (whether or not by the
landlord) in connection with the exercise of the landlord's housing management
functions, and that is directly or indirectly related to or affects those functions 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 indictable offence committed in, or in the locality of, the dwelling-house.
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Less common grounds for possession
• Secure
• Ground 2A – domestic violence
• Grounds 3 & 4 – deterioration of property/furniture
• Ground 5 – false statement to induce tenancy
• Ground 9 – overcrowding
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Less common grounds continued
• Assured
• Ground 13 – deterioration of condition of property
• Ground 14A – domestic violence
• Ground 15 – deterioration of condition of furniture
• Ground 17 – false statement made to induce
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Matters that the Court has to consider when
deciding whether to make a possession order
under a discretionary ground
• Whether it is reasonable in the circumstances to:
a) Make a possession order
b) If yes, what type of possession order?
- Outright?
- Suspended on terms?
- Postponed?
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Mandatory Types of Claim
• New mandatory ground for possession
• Ground 8 rent claim – assured only
• Section 21 Notice – AST only
• NTQ – non-occupation, abandonment, death of tenant
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Mandatory Ground for Possession
• The ASB, Crime & Policing Act Act introduced a new
Section 84A to be inserted into the Housing Act 1985
and a new Ground 7A to be inserted into Part 1,
Schedule 2, Housing Act 1988.
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Mandatory Ground for Possession - The Test
• If the Court is satisfied that any of 5 conditions are
met, (and in the case of a secure tenant of a Local
Authority or a Housing Action Trust, the review
requirements have been complied with) it must make
an Order for Possession.
• E.g. breach of injunction, criminal conviction of certain
offences, breach of a CBO, closure order, breach of
statutory abatement notice.
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Ground 8 rent claim - assured
• Both at the date of the service of the notice under section 8 of this Act
relating to the proceedings for possession and at the date of the
hearing—
• (a)if rent is payable weekly or fortnightly, at least eight weeks’ rent is
unpaid;
• (b)if rent is payable monthly, at least two months’ rent is unpaid;
• (c)if rent is payable quarterly, at least one quarter’s rent is more than
three months in arrears; and
• (d)if rent is payable yearly, at least three months’ rent is more than three
months in arrears;
• and for the purpose of this ground “rent” means rent lawfully due from
the tenant.
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Section 21 Notice - AST
• An AST is a form of assured tenancy
• If AST can seek possession without ground for
possession needing to be proved
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Section 21 Notice continued
• Non-fault based ground for possession
• Service of notice – prescribed form
• 2 months’ notice
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Notice to Quit
• Cannot be served unless tenancy has lost its
secure/assured status
• NTQ determines the remaining contractual tenancy
• E.g. Abandonment, non-occupation, death of tenant
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Notice to Quit continued
• 4 weeks’ notice
• Serve at property and any other known address
• In abandonment/non-occupation case, serve a NOSP
without prejudice too
• In death of tenant case, serve NOSP on Personal
Representatives of the deceased tenant and serve a
copy on Public Trustee
• Savings clause
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What the court has to consider when making a
decision on a claim brought under a mandatory
ground/claim
• If ground is made out, order ought to be made
• Concept of proportionality evolved – human rights act
and public law defences
• Very high threshold – exceptional cases
• Whether making an order for possession is a
proportionate means of achieving a legitimate aim
• No halfway house – either you get order or you don’t
and order cannot be suspended
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Serving Notice
• Must make sure you get the right notice – very
important and might be fatal to your claim
• N.B Dispensation of requirements can be sought but
should only be as last resort
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Preparing the Notice of Seeking Possession
• The Notice of Seeking Possession (NOSP) is a form
prescribed by statute:
– Secure tenancies – Section 83 Housing Act 1985
– Assured tenancies – Section 8 Housing Act 1988 –
prescribed form as from 6 April 2016 under the
Assured Tenancies and Agricultural Occupancies
Regulations 2016
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Preparing the Notice of Seeking Possession
• Must ensure it is factually accurate and fully particularised
• Must specify ground for possession in full and particulars of
each ground relied upon
• If relying on Ground 1/12 must set out the clauses of
tenancy agreement breached in full
• Date after which proceedings can be started – check
tenancy agreement
• Ensure NOSP is in correct form
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Service of the NOSP
• Must ensure that you give sufficient time for service –
check if you have to give 2 or 4 weeks notice (usual
rule: 4 weeks for secure tenancies, 2 weeks for
assured tenancies but check tenancy agreement).
• Short notice for ASB grounds as long as tenancy
allows it
• Certificate of Service should confirm: date, time and
method of service
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Tips
• Ensure that you include all relevant grounds
• If serving NTQ and NOSP together remember to mark
each notice “Without Prejudice”
• Always hand deliver if possible and complete
certificate of service
• Ensure your precedents are up to date
• Dispensation – always as a last resort
• Any questions – ask us!
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Other remedies to deal
with a breach of tenancy
Rebecca Brady
Devonshires Solicitors
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Mediation
• Useful tool in neighbour disputes
• Get parties around table and talking
• Internal or external
• Requires co-operation from parties
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Acceptable Behaviour Contracts
• Tool for anti-social behaviour
• Tenant, occupier, visitor etc.
• First warning
• Can support possession proceedings if behaviour
doesn’t change
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Demoted Tenancy
• Tool to tackle anti-social behaviour
• If granted the assured tenancy will be demoted to an
AST for a fixed period
• If any further incidents can follow the procedure for
possession without needing to prove a ground in the
same way as for an AST – NB proportionality
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Demotion Order (1)
• Demotion Order which will terminate an assured or secure
tenancy and replace it with a demoted tenancy
• Before issuing proceedings - Notice of Demotion must be
served giving particulars of the conduct in respect of which
the order is sought
• Proceedings will need to be started within 12 months of the
date of service of the Notice
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Demotion Order (2)
• When deciding whether to grant an order for a demoted
tenancy the Court must be satisfied that the tenant or the
person residing or visiting the property has engaged in
behaviour which:
– is capable of causing nuisance or annoyance to any
person and
– directly or indirectly relates to or affects the housing
management functions of the landlord
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Demotion Order (3)
• The Court must also be satisfied that it is reasonable
to make an order for demoted tenancy
• If no breaches occur within the 12 months the tenancy
will revert to its assured/secure status
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Statutory Abatement Notices
• Environmental Protection Act 1980
• Statutory nuisance
• Served by Environmental Health Office
• Abate nuisance
• Breach gives rise to mandatory ground for possession
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Community Protection Notice
• Designed to deal with particular ongoing problems or
nuisance that negatively effect the community’s quality
of life by targeting the individuals or businesses
responsible
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CPNs (cont.) – The Test
1. Relevant agencies must be reasonably satisfied
conduct is having a detrimental effect of a persistent
or continuing nature on the quality of life of these in
the locality
2. Conduct must be unreasonable
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CPNs (cont.) - Content
• Requires a person to stop and take steps to ensure
behaviour does not happen again
• Must be served on a person responsible for the
behaviour
• Can be served by:
- Police
- Council
- Designated person
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CPNs (cont.) - Content
• Can include positive requirements, e.g. remedial
works (immediate or designated deadline)
• Can contain prohibitions e.g. not to walk dog off lead
• Can contain requirement to make “reasonable steps”
to achieve specified results
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Public Space Protection Order
• Order designed to deal with a particular nuisance or
problem in a particular areas that is detrimental to the
local community’s quality of life.
• It can deal with current and future problems
• Last up to 3 years but can be extended
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PSPO – The Test
• Available to Local Authority/Designated body only if:
(i) activity carried out in public space of that authority
had or is likely to have a detrimental affect of the
quality of life of those in the locality and
(ii) effect is/likely to be:
- persistent/continuing
- Unreasonable
- justifies restriction
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Criminal Behaviour Orders (CBO)
• Available on conviction for any criminal offence
• Aimed at tackling the most serious and persistent
offenders
• On application by CPS upon conviction or at request
of council/police
• Need inter-agency cooperation
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CBO (cont.)
• Replaced ASBO and DBO on conviction
• Available in Youth, Magistrates or Crown Court
• Hearing will be after or at the sentencing hearing of
offence
• Can have prohibitions and requirements.
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CBO (cont.)
• Two conditions:
• i) Court satisfied beyond reasonable doubt that
offender has engaged in behaviour that has caused/is
likely to cause harassment, alarm or distress to any
person and
• Ii) Court considers making an order will help prevent
offender engaging in such behaviour
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CBO (cont.)
• Can deal with wide range of behaviour
• Minimum 2 years up to indefinite period
• Can vary or discharge
• Breach is criminal offence
- summary fine/6months/both
- indictment – fine/5 years/both
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Closure Orders
• Police or Council can close premises being used/likely
to be used to commit nuisance or disorder
• Two stages
(i) Closure Notice
(ii) Closure Order
• Require consultation with appropriate person and
inform the owner/landlord/tenant etc.
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Closure Orders (cont.)
• Notice = Short-term = out of Court for up to 48hours
but can’t exclude occupiers
• Test for Notice:
(i) Nuisance to public
(ii) Disorder near premises
• Breach is criminal offence – up to 3months/unlimited
fine
• Can appeal
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Closure Orders (cont.)
• Test for Orders:
(i) Disorderly, offensive or criminal behaviour
(ii) Serious nuisance to public
(iii) Disorder near premises
• Can close for up to 6 months and exclude access
• Breach is criminal offence – up to 6 months/unlimited
fine/both
• Can appeal
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Dispersal Powers
• Sections 34-40
• Requires a person committing ASB, a crime or
disorder to leave an area for up to 48hours
• Available to Police/PCSO if authorised by inspector
• Test:
(i) Contributing or likely to contribute to members of the
public in the locality being harassed, alarmed or
distressed and
(ii) Necessary to remove/reduce likelihood of
ASB/Crime/Disorder
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Dispersal (cont.)
• Must be in writing unless not reasonably practicable
• Must specify the area
• Can determine route and time to leave by
• Can confiscate items
• Age 10+
• N.B. Rights of freedom of expression (article 10) and
assembly (article 11) – need authorisation from senior
officer to ensure rights are not infringed
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Any Questions?