Removal of statutory breach of tenancy injunction from ABCPA 2014 will cause a headache for landlords, predicts Kirsty Varley

When the Anti-social Behaviour, Crime and Policing Act 2014 (ABCPA 2014) received Royal Assent in March, many changes were enshrined in law. While there is, at the time of writing, no commencement date for the changes, the intention is that they will come into force at some stage and so need to be given their due consideration.

Statutory breach of tenancy remedy?

In dealing with anti-social behaviour and tenancy enforcement, the tools and powers have been simplified in the main, and social landlords in particular are likely to welcome most of the changes to the remedies. There is one exception to this, however, and this is the removal of the statutory breach of tenancy injunction. The statutory breach of tenancy injunction is introduced in the Housing Act 1996 (HA 1996) and would have survived due to Cl 13 of the Anti-Social Behaviour Crime and Policing Bill. Clause 13 of the Bill was removed by the House of Lords in late 2013, and never replaced. The remedy that landlords relied on before HA 1996 remedies would be under contract law. If the court considered that damages would be an adequate remedy, it may not have been minded to grant an injunction. Damages are of course a deeply unsatisfactory alternative to an injunction.

Clause 13 of the Anti-Social Behaviour Crime and Policing Bill (5) stated: “the following provisions of this part apply to a tenancy injunction as they apply to an injunction under s1”. This then went on to state that orders had to specify how long they were for, and could only be for 12 months if the tenant was under 18. It also specified that a power of arrest (if attached) could be for a shorter period than the prohibition that it was attached to, that it could be made on a without notice interim basis and the manner in which it could be varied. It further detailed how orders were to be appealed, and provisions relating to breach and remand. This set out a clear statutory regime for applying for a breach of tenancy injunction. Social landlords will no longer have the benefit of such clear statutory guidance when the Act comes into force.

Lord Ahmad in the House of Lords said on 20 November 2013: “Clause 13 makes special provision for tenancy injunctions so as to preserve the powers in housing legislation. Front-line professionals have demonstrated through discussions held that they value this power and that is why we have retained it.” The power in housing legislation that Lord Ahmad refers to is the one which allows landlords to apply to the court for an injunction under s 153D HA 1996, named in that Act as “breach of tenancy injunction”. These are examined in more detail below. Clause 13 was eventually removed after the House of Lords expressed a desire to keep the reforms “tenure neutral”. This amendment was never reversed by the House of Commons, and so when the Act comes into force, it does so without this provision. The merits or otherwise of both cl 13 and the current s 153D Breach of Tenancy injunction have been the subject of much debate among lawyers and housing professionals alike.

Section 153D of HA 1996

The often misunderstood and sometimes underused statutory power provided by s 153D of HA 1996 was used very effectively in Manchester City Council v M [2006] EWCA Civ 423, [2006] All ER (D) 293 (Mar). This case involved a tenant who was made the subject of a s 153D breach of tenancy injunction for failing to control the behaviour of her visitors and those residing with her. This failure to control the behaviour of those residing with or visiting her was a breach of her tenancy agreement. A county court anti-social behaviour order (ASBO) was attached as an ancillary order for her son, who was the perpetrator of the behaviour complained of. The case reached the Court of Appeal as the consultation that had been undertaken by the council around the son’s ASBO was challenged. The council’s application for a final ASBO was dismissed in the lower court on the basis that it could not show that the pre-ASBO application consultation requirements had been met. The Court of Appeal allowed the council's appeal. The issue of consultation had been dealt with and resolved in the council's favour at the earlier interim hearing and ought not to have been revisited.

Current practitioners will find guidance as to who can apply for a s 153D breach of tenancy injunction and when a power of arrest can be attached to this type of injunction at page 1284 of the 2014 White Book, Volume 2, and in particular the Editorial note at 3A-1223 and 3A-1225. Many social landlords across the country are utilising this tool to great effect at the moment.

Key difference in the new Act

When the new Act comes into force, any application to the court for an injunction that does not tackle anti-social behaviour perpetrated by the tenant personally that constitutes a breach of the tenancy agreement will need to be done through contract law and not under the soon to be defunct statutory regime. There are some key differences to this approach, and also to the remedies available. Landlords will be seeking to enforce a contract under contract law (rather than a tenancy under the existing regime) and will need to adhere to all of contract’s well-known and settled principles.

A landlord may have difficulties in showing that a contract was entered into freely if problems occur post-stock transfer and the tenant in question objected to the transfer in the first place and argues they were forced into the contract. Landlords may also incur further costs to demonstrate a contract if post-transfer the tenant did not sign a new tenancy agreement. The courts might not be willing to allow landlords to take action for a breach of contract when one of the parties did not agree to be bound by it just because they happen to be a social housing tenant. These are basic principles of contract law and will surely be argued by tenant lawyers in court. Also, if the conduct of the parties is to be relied upon as proof of a contract then payment of housing benefit direct to the landlord instead of payment of rent by tenant might muddy the water. Many social landlords will recognise the frequency with which human rights, the Equality Act 2010 and proportionality are raised by the defence, and any other opportunity to undermine proceedings and attack the legitimacy of them is sure to be exploited by tenant lawyers. This could be the subject of very expensive and unwelcome satellite litigation for landlords.

To make matters more complicated there is the well-used argument that if Parliament had intended that a breach of tenancy injunction should be available, then they would not have removed cl 13 from the Bill, and would have replaced s 153D of HA 1996 to be used as demonstrated in the Manchester case. The intention of Parliament when new legislation comes into force is an argument that is often made in court, and with success.

Problems ahead for landlords

If a landlord manages to persuade the court that a contract has been entered into freely by the parties, that a contract exists between the parties, and that the landlord should be entitled to obtain relief for breach of contract, then the question of the remedies available must be dealt with. The court might prefer damages to injunctive relief, especially if the breach cost the landlord money. Damages were not available under the statutory regime, and only apply to the breach of contract remedies, and not the breach of tenancy injunction. If the court does grant an injunction there will be no power of arrest available to be attached the injunction order when it is made, which often serves as a deterrent at present, and is viewed by many landlords as being a vital tool in their armoury of managing their stock effectively.

It is not cost-effective or without its problems to suggest to landlords that taking out numerous different injunctions under ABCPA 2014 against each anti-social visitor to a property will deal with matters efficiently. This is contrasted with the current regime, one s 153A and C injunction (with power of arrest) against one visitor causing anti-social behaviour, and one s 153D injunction against the tenant for failing to control their visitors behaviour as per the Manchester case would deal with the behaviour much more effectively, cheaply, and with more certainty than will be possible in the future.

Landlords should be fully appraised of these matters as it is not the case that an injunction to prevent breach of contract will plug the gap left by the statutory breach of tenancy injunction. The statutory power contained within the legislation is being removed. It is not advisable therefore when pursuing a remedy through the courts by a common law mechanism to ask for a different remedy that was previously enshrined in statute that does not bear the same name.

Under the new Act it is not possible to apply for a breach of tenancy injunction where the tenant personally does not cause anti-social behaviour, and in terms of managing the tenancy, the new regime will not help and common law contract principles (which are intended to apply to commercial relationships) will have to be made to apply. Landlords are losing a statutory power and are in a worse position now than they have been for over 10 years since the relevant sections in the Act came into force. To suggest that a common law breach of contract injunction can fill the gap and landlords need not worry is to give landlords false hope, and to oversimplify a far from ideal situation.

Kirsty Varley, solicitor & higher courts advocate, Croftons LLP (kirstyv@croftons.co.uk; www.croftons-solicitors.co.uk)

This article was first published by New Law Journal on 7 May 2014 and is reproduced with permission.