Introduction to Subject

Anti-social behaviour (ASB) is behaviour that causes or is likely to cause alarm, distress or harassment to one or more people not of the same household as the defendant and is of a serious and persistent nature. Anti-social behaviour is the umbrella term which includes causing nuisance, harassment, racial incidents, neighbour disputes and includes noise complaints. Under Schedule 2 of the Housing Act 1988 a landlord can seek possession of a property on grounds of anti-social behaviour.

The Housing Act 2004 introduced tools available to the local authority to ensure that anti-social behaviour by private tenants is dealt with appropriately by the landlord.

Legislation

• The Housing (Interim Management Orders) (Prescribed Circumstances) (England) Order 2006
• The Housing Act 1988
• Housing Act 2004
• The Housing (Scotland) Act 1988
• Anti-Social Behaviour etc (Scotland) Act 2004

Preventing anti-social behaviour

There are certain steps that a landlord can take to try to prevent anti-social behaviour before it starts. Tenants should be aware from the outset the standards of behaviour that are expected of them.

It is good practice to require written references from prospective tenants. In areas which are subject to selective licensing in order to combat anti-social behaviour then it is a requirement of holding a licence that the landlord must seek written references from tenants.

A few local authorities run tenant accreditation schemes. These enable tenants whose behaviour meets certain standards to be recognised as good tenants. A landlord should ask the local authority whether they currently run a tenant accreditation scheme and, if so, whether a prospective tenant is accredited with it.

The landlord should ensure that he uses a tenancy agreement which includes specific clauses relating to anti-social behaviour. The most common issues which may give rise to problems and which can be addressed through terms of tenancy agreements are:

• Sub-letting by the tenant
• Anti-social or criminal activity which may become a nuisance or cause damage to the property or the neighbourhood or which may render the property insurance void
• Noise pollution, especially late at night. This could be general noise associated with frequent entrants to the property or specific noise audible outside the property caused by musical instruments, television or radio or other equipment
• Noise caused by washing machines or dryers late at night

The landlord can also help to prevent complaints about noise arising by making his best efforts to ensure that there is adequate sound insulation in the property, particularly in flats orHMOs.

If the landlord's property is a leasehold one there may be specific clauses in the head lease, dealing with these or other aspects of anti-social behaviour, that need to be reflected in the tenancy agreement.

Dealing with anti-social behaviour

Landlords may experience problems relating to anti-social behaviour either where their tenant is causing the problem or where the tenant is the victim of ASB.

A landlord can only be held responsible for addressing a tenant's behaviour if it takes place within the curtilage of the property or is associated with the tenant's occupation of the property. A landlord cannot be responsible for handling a tenant's anti-social behaviour which takes place away from the property and is not linked to the occupancy.

In licensable properties the licence holder is required to take reasonable steps to ensure that tenants are not causing problems within the boundaries of the property through anti-social behaviour.

Everyday problems such as noise or lifestyle differences can usually be sorted out by mediation. Local authorities may be able to put landlords in touch with a local mediation service. These are usually operated by charitable organisations with services offered at no cost.

Dealing with neighbour disputes can have repercussions for the landlord or complainant and therefore it is important to seek legal advice.

If the tenant is the victim of the behaviour they should keep an accurate record of the problem and events as they happen. The local authority's Anti-Social Behaviour team may be able to assist with this.

In serious or persistent cases where the landlord is not able to resolve the problem for example:

• where there are threats, violence or criminal behaviour, or
• where the parties will not agree to mediation

the landlord will need to contact the local authority's Anti-Social Behaviour team or the police for assistance.

If the tenant is behaving anti-socially the landlord can seek to evict him. Whether or not to use this option will be determined by the circumstances of the case.

If the landlord has enough evidence he can evict on grounds of anti-social behaviour (ground 14). For assured tenants this is the only option. If the tenant is on an assured shorthold tenancy it may be easier, however, to use the 'no fault' section 21 procedure.

To evict on grounds of anti-social behaviour landlords need evidence to take action. The nuisance has to be substantial and persistent, not just a one-off incident.

The landlord needs to speak to the people complaining and gather evidence of names and addresses of people affected as well as dates/times/detail of incidents. Further supporting evidence may be sought from other neighbours and agencies such as the local authority's environmental health services or the police who may also have received complaints.

Once the evidence has been gathered the landlord can take the appropriate action. This may intially just be talking to the tenant about the matter. If this doesn't resolve the problem then the matter can be put to the tenant in writing. The landlord can inform the tenant that he has the legal right to obtain possession of the property if he can prove to a court that the tenant's behaviour has created a nuisance to neighbours and that he intends to apply to the court if the matter is not resolved.

If a landlord decides to take this action, he should take care that it cannot be construed as being discriminatory in any way and that he cannot be accused of racial or other harassment.

Legal Action against anti-social behavior

If the matter does go to court in a claim based on anti-social behaviour grounds, it can take anything from under 6 months to reach court, to a much longer period if it needs to go to a higher court on appeal.

Therefore if a landlord has a tenant who is behaving in an anti-social manner, the best course of action is to bring a claim for possession under the 'no fault' section 21 procedure at the earliest opportunity. This is cheaper and quicker and is also less likely to antagonise the tenant as the landlord will not be citing any anti-social behaviour in the court proceedings which could be disputed. There is no defence to a properly drafted section 21 claim and so the landlord will not be faced with the possibility of the judge deciding that the tenant needs a 'second chance' to improve his behaviour.

Action for possession on grounds of nuisance

In some county courts it is extremely difficult to obtain a suspended possession order or outright order for a claim based on nuisance.

Nuisance is a 'discretionary' ground for possession that means that the court does not have to agree to the landlord's request to evict if it thinks the landlord is being unreasonable or can't prove his case. A lot of evidence must be collected and presented: sometimes witness statements are not enough.

If a landlord wishes to bring proceedings on this basis, it is advisable to liaise with the local authority's Anti-Social Behaviour Unit for help and advice when taking possession action.

However again, it is frequently possible to avoid all these problems for tenants on assured shorthold tenancies by simply bringing a claim for possession under the section 21 procedure.

Management Orders and Selective Licensing

The Housing Act 2004 introduced tools available to the local authority to ensure that anti-social behaviour by private tenants is dealt with appropriately by the landlord.

Special Interim Management Orders (SIMOs) can be used by local authorities to tackle serious individual (and isolated) cases of anti-social behaviour which affect the community in the vicinity of the property.

If the landlord is not taking action to deal with anti-social behaviour emanating from a property the local authority can apply to an Residential Property Tribunal (RPT) for a SIMO. If it is granted the local authority takes over the management of the property. The local authority has the right to take the appropriate steps to deal with the tenants' anti-social behaviour in the property. During this time the landlord remains the legal owner of the property.

If the local authority applies to the RPT for a SIMO it will notify the landlord and he has the right to appeal against the application.

A SIMO lasts for a maximum of 1 year. It can be revoked at any time by the local authority if it is no longer needed to deal with the problem. If it is not revoked and the problem remains when it comes to an end the local authority can apply to the RPT for a Final Management Order (FMO) which lasts for 5 years.

If there is a wider problem of ASB involving an area suffering from significant and persistent anti-social behaviour emanating from several privately rented properties, the LHA can make a selective licensing scheme.

If an area is subject to selective licensing nearly all landlords of privately rented properties are required to obtain a licence. The scheme is intended to ensure that landlords and their managers in designated areas meet minimum management standards. If they fail to carry out their management responsibilities (including taking steps to deal with anti-social behaviour) the local authority can turn down a licence application or revoke an existing licence and will have to take over the management of the property via an Interim Management Order.

A separate course in this programme on licensing gives further information about the use of selective licensing and management orders.

Powers available to the local authority

Local authorities and other public bodies such as the police have additional powers available to deal with anti-social behaviour which are not available to private landlords.

These include:

• issuing penalty and warning notices for noise nuisance
• use of Anti-Social Behaviour Orders (ASBOs)
• Injunctions against an individual
• Crack-house closure powers