In our 'practical points' article last month, we looked at what is likely to happen after 23 March when the new Civil Injunction comes into place, and outlined some practical points for Social Landlords to consider before issuing possession proceedings.
In this article, we look at what could happen once possession proceedings have been issued, and what types of defences tenants are likely to raise.
We will also challenge the assumption that applying for a possession order under this ground comes under the category of too much effort for an uncertain outcome. We suggest instead that it could be an attractive option for Social Landlords, for the right cases.
The assumption is that Social Landlords will issue proceedings in much the same way as existing anti-social behaviour (ASB) possession proceedings, and then wait for the court to issue a short initial hearing.
We think it might make more sense to request a longer hearing date at the outset, to give Social Landlords an opportunity to obtain an order at the first hearing.
The first hearing
Firstly, you need to be prepared to prove your case; namely that your tenant's injunction has been breached.
Secondly, you need to be able to show that you have acted proportionately in deciding to apply for possession, and provide evidence of it.
Thirdly, you need to anticipate likely defences from the tenant, or the court, or both, bearing in mind that S7(3) HA 1988 (as amended) directs the court to consider any available defence based on the tenants' convention rights.
Whilst this mostly centres on arguments of proportionality, you also need to be ready to argue other potential public law defences, eg claims that you have not followed your polices and procedures.
Although there is no guarantee that this will succeed at the first hearing - especially if the tenant appeals and contests that he has breached the injunction, or raises arguments under the Equality Act 2010 - you will have put yourself in the best possible position to obtain it.
The second hearing
If your arguments are contested or the tenant raises Article 8 (or even an Equality Act argument) then the judge will give directions for exchange of evidence and then list it for a further hearing.
Whilst no one knows how the court will approach this type of case, or what defences will be raised to them, we don't think that this is a reason not to use the mandatory ground in appropriate cases. This is especially true where your tenant has breached an injunction, possibly repeatedly.
As everyone in Housing Management is aware, ASB possession cases can be lengthy, expensive and uncertain in outcome. In our view, any alternative which has the potential to reduce them has got to be worth considering.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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