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Breach of a tenancy agreement by illegal activity

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Posted by Mary Rouse on 29 April 2013

Mary Rouse Partner

Registered providers of social housing may have to deal with problem tenants engaging in illegal activity. We highlight some recent cases.

Wright Hassall recently obtained an outright possession order on behalf of a registered provider of social housing (RP) against two assured joint tenants. 

Following the execution of a search warrant, a sophisticated cannabis farm was found in the attic of the tenants’ property which had an estimated annual yield of £88,500.

Tenant A admitted he had established the cannabis farm but Tenant B, who was his partner at the time, stated she had no knowledge whatsoever of the operation. 

At trial the key issues for the Judge were whether Tenant B knew about the cannabis farm and whether in all the circumstances it would be reasonable to make an outright or suspended order. Both tenants admitted that the tenancy had been breached. At the trial the judge found that Tenant B either knew about the operation or was wilfully blind to what was occurring in her property. 

The Judge, having considered the issue of reasonableness, concluded that an outright order was appropriate. She observed the relationship ended only when possession proceedings were commenced. Therefore inferences could be drawn that Tenant B’s actions to distance herself from Tenant A arose as a result of the possession proceedings only. This was taken into account by the Judge when she found in all the circumstances it was reasonable to grant an outright order.

Bristol City Council v Mousah [1997]

Any illegal activity, such as growing cannabis on the premises, represents a serious breach of any tenancy agreement. The case of Bristol City Council v Mousah [1997] should be treated as a starting point for any legal submissions. Lord Justice Bedlam made the following comments:

“The public interest, in my view, is best served by making it abundantly clear to those who have the advantage of public housing benefits that, if they commit serious offences at the premises in breach of condition, save in exceptional cases, an order for possession will be made. … In my view the public interest would best be served by the appellant being able in a case such as this to re-let the premises to someone who will not use them for peddling crack cocaine.”

Undoubtedly this is a useful starting point for any RP; however, this decision was made before the implementation of the Human Rights Act 1998 (HRA).

Sandwell MBC v Hensley [2007]

Sandwell MBC v Hensley [2007] becomes a useful tool to reaffirm the principle set out in Mousah in a post HRA world. This case concerned the cultivation of cannabis. The Council successfully appealed the District Judge’s decision to make a suspended possession order. In allowing the appeal Lord Justice Gage stated:

“In my view, unless there was cogent evidence providing a real hope that the defendant had mended his ways, the council was in all the circumstances entitled to an outright order. In my judgment, there was no such evidence. Exercising the discretion afresh, I would allow the appeal and make an outright order for possession.”

Birmingham City Council v Ashton [2012]

The most recent decision concerning illegal activity was in the case of Birmingham City Council v Ashton [2012]. In this case the onus was shifted to the party that sought the benefit of a suspended possession order, requiring them to provide cogent evidence to show that anti-social behaviour will not recur, or will be unlikely to do so.

Useful evidence to persuade the Court

There are three types of evidence that are useful in persuading the Court to make an outright order in instances where a tenancy agreement has been breached by illegal activity:

  • The first is evidence of the illegal activity itself such as photos and police reports. 
  • The second is an inspection by an engineer showing the extent to which the structure of the property has been altered. 
  • And the third is evidence that the tenant only showed remorse after they got caught and possession proceedings were commenced. The burden is on the tenant to prove that anti-social behaviour will not recur but it is good practice to present evidence that the tenant only showed remorse once possession proceedings were commenced.

The waiting list for housing can also be very persuasive. Why should an RP continue to provide housing for tenants who flagrantly breach the terms of their agreement when there are needy families waiting to be housed?

Any illegal activity needs to be swiftly tackled by RPs. Although the Courts may not grant an outright order on every occasion it is essential that action is taken to send out the message that abuse of the provision of social housing will not be tolerated.

About the author

Mary Rouse


Mary is an experienced property litigation lawyer.

Mary Rouse

Mary is an experienced property litigation lawyer.

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