Problem tenants

This article is written by DAS Law

Landlords following the news, who are worrying about problem tenants, will have seen that the government has launched a special fast track for repossession cases featuring antisocial behaviour cases.

But what does this mean for landlords? Molly-Ellen Turecek, Legal Adviser at ARAG Law, tells you what you need to know.

How does the law define anti-social behaviour?

Antisocial behaviour is generally defined as "…behaviour by a person which causes, or is likely to cause, harassment, alarm or distress to persons not of the same household as the person."
Common examples are excessive noise, graffiti, littering, vandalism or large groups outside a property causing alarm or distress. Whilst there may be a wide range of behaviours that could constitute anti-social behaviour, not all behaviours give landlords the same rights when it comes to evicting the tenants.  Legal advice should be sought on how the particular anti-social behaviour affects landlord's rights.

How can I mitigate taking on tenants that may become a problem for anti-social behaviour / nuisance? What can I do to prevent my tenants being anti-social / causing a nuisance? What powers do landlords have?

There are a few things that landlords can do in order to try and prevent taking on tenants that may become a problem for anti-social behaviour. Landlords could look to carry out pre-tenancy checks such as obtaining a reference from the prospective tenant's old landlord or trying to obtain a general character reference from somebody reputable such as an employer. Some local authorities hold tenant accreditation schemes which allow landlords to contact the local authority and find out whether the prospective tenants are recognised as good tenants.

Anti-social behaviour can often involve incidents of excessive noise. In order to try and mitigate such issue landlords could look to install soundproofing (particularly in flats) within their property.  Landlords could also look to include specific terms regarding anti-social behaviour within their tenancy agreements. By including such clauses, landlords can ensure their tenants are aware of their responsibilities as tenants and should an anti-social behaviour issue arise landlords could look to rely on those clauses when needing to take action.

Further preventative measures that landlords could take can include talking to the tenant as soon as there seems to be a genuine issue with their behaviour. Landlords should be emphasising that it is not acceptable to behave in such a way and warn them that they are in breach of their tenancy terms. Where multiple conversations are taking place landlords could also remind tenants that there may be consequences should they wish to continue behaving that way. It would also be wise to follow up any conversations that landlords have with their tenants in writing as it could become useful evidence if the issue progresses further.

What do I need to be aware of?

Landlords are not obligated to take action against a tenant when they are in breach of their tenancy agreement and are generally not liable for nuisance tenants. However, where landlords fail to take reasonable steps to stop such behaviour, or that the behaviour was evidently authorised by them, it can be argued that responsibility should fall upon the landlord either wholly or partially with the tenant. Landlords should therefore take anti-social matters seriously as they do not want to get themselves into a legal battle with third parties who are suffering from their tenant's behaviour.
Landlords are also not alone when faced with such issues. They can contact the police or any relevant departments within their local authority to see whether there are any steps they could take in order to help the situation.

On what grounds can I evict tenants for anti-social behaviour / nuisance?

Eviction should be treated as a last resort. In order to lawfully evict tenants landlords would firstly need to serve notice. Landlords could look to serve a Section 8 notice where they would need to provide certain grounds on the notice that are set out in Schedule 2 of the Housing Act 1988. If a landlord is dealing with a case of serious anti-social behaviour they could look to rely upon ground 7A. Landlords are urged to take legal advice to ensure notices to tenants are in the correct format.

How do I show that my tenant has been antisocial? What evidence do I need to gather?

The court will expect landlords to show that their tenant has been anti-social. Evidence that may be useful could include the following:

• Photographic evidence where damage has been caused as a result of the anti-social behaviour;
• Witness statements from those who have been affected by the anti-social behaviour;
• Professional witness statements or reports from the police or environmental health officers;
• Written diary entries of incidents;
• Any relevant correspondence with the tenant regarding their behaviour.

What are the rule changes for repossession in cases of anti-social behaviour?

There have been a lot of changes regarding repossession in face of the recent COVID-19 pandemic. Most importantly, since 21 September 2020 landlord applications for repossession are being reviewed by the courts again.

The amount of notice landlords are required to give tenants has also frequently changed in the last few months. From 29 August 2020, where a landlord is seeking to rely upon ground 7A which relates to serious anti-social behaviour, landlords currently need to provide four weeks' notice where there is a periodic tenancy in place, or one month notice if there is a fixed term tenancy.

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