14.25.3 Mandatory Grounds

Ground 1 - Returning owner occupier

A landlord must prove that:

a)      at, or before, the grant of the tenancy the landlord gave notice in writing that possession might be recovered on this ground. The notice need not be in any particular form and may be included as a recital in any tenancy agreement provided that the agreement does not operate retrospectively. The court has power to dispense with such a notice if it considers it just and equitable. See:

·        Boyle v Verrall [1997] 04 EG 145, 29 HLR 436, CA. (In determining whether it is just and equitable to dispense with notice, the court should look at all the circumstances of the case. If oral notice was given when a tenancy was granted, it may be an important factor favouring dispensation. However it does not follow that oral notice is a prerequisite for such a decision. On the other hand absence of oral notice is not a reason for restricting dispensation to circumstances where there is an 'exceptional case'. A tenant's persistent late payment of rent is a relevant circumstance.)

·        Mustafa v Ruddock (1998) 30 HLR 495, CA. Matters relevant to the exercise of discretion included:

(1)   the original letting purported to be an assured shorthold;

(2)   the proceedings were undefended. There was no evidence of hardship to the tenant;

(3)   there was genuine hardship to the landlord;

(4)   the error arose through the mistake of the landlord's agent who was now bankrupt.

The failure to notify the tenant that possession might be required was an important factor but in no way conclusive.

·        Hegab v Shamash June 1998 Legal Action 13, CA. The Court of Appeal stated that it was 'inherent in...deciding what was just and equitable [to take] into account all the circumstances'. The Court allowed the tenant's appeal because the judge had failed to take into account two matters, namely the fact that the tenant had paid a deposit of £4,000 in relation to a proposed purchase of the premises which had not been refunded and that the landlord had not paid the costs of earlier proceedings concerning an illegal eviction by the landlord.

and either

b)      at some time before the grant of the tenancy the landlord, or if there are joint landlords, at least one of them, occupied the dwelling-house as his or her only or principal residence. A landlord's previous occupation may be temporary and intermittent in order to suffice - see Naish v Curzon (1984) 17 HLR 220, CA and Mistry v Isidore (1990) 22 HLR 281, CA cf Ibie v Trubshaw (1990) 22 HLR 191, CA.

or

c)      the landlord (or at least one of them) 'requires the dwelling-house as his or his spouse's only or principal home'. The landlord need not show that the premises are reasonably required, merely that the landlord 'bona fide wants' or 'genuinely has the immediate intention' of occupying the premises (Kennealy v Dunne [1977] QB 837, CA). Premises need not be required as a permanent residence and fairly intermittent residence will be sufficient (Naish v Curzon (1984) 17 HLR 220, CA).

This ground for possession is not available to a new landlord who has acquired the premises 'for money or money's worth' from an original landlord who gave a notice that possession might be recovered under this ground. (Epps v Rothnie [1945] KB 562, CA).

Ground 2 - Mortgagees

This ground applies if :

a)      a mortgagee is entitled to exercise a power of sale (e.g. if the mortgagor has defaulted on instalments of the mortgage); and

b)      the mortgagee requires vacant possession to exercise that power; and

c)      a Ground 1 notice was given before the commencement of the tenancy or the court considers it just and equitable to dispense with the notice.

Note the comments of Lord Denning MR in Quennell v Maltby [1979] 1 WLR 318.

Ground 3 - Tenancy preceded by 'holiday let'

A landlord must prove that:

a)      not later than the grant of the tenancy, notice was given that possession might be recovered under this ground and;

b)      at some time during the twelve months prior to the grant of the tenancy, the dwelling-house was occupied for a holiday.

The court has no power to dispense with service of the notice required prior to the grant of the tenancy. See Fowler v Minchin (1987) 19 HLR 224, CA, but cf Springfield Investments v Bell (1990) 22 HLR 440, CA.

Ground 4 - Educational Institutions

This ground applies where, during the twelve months preceding the tenancy, premises were let by a specified educational institution. As with Ground 3, notice stating that this ground may be relied upon has to be served before the commencement of the tenancy. See the Assured and Protected Tenancies (Lettings to Students) Regulations 1998 SI No 1967.

Ground 5 - Ministers of Religion

This ground applies to premises which are 'held for the purpose of being available for occupation by a minister of religion as a residence from which to perform duties of his office'. Notice that possession might be required must be served before the grant of the tenancy and the landlord must satisfy the court that the property is required for occupation by a minister of religion as a residence.

Ground 6 - Demolition or Reconstruction

This ground is available for a landlord who 'intends to demolish or reconstruct the whole or a substantial part of the dwelling-house or to carry out substantial works'. This ground is very similar to Landlord & Tenant Act 1954 s30(l)(f).

a)      It has been held that 'reconstruction' means 'a substantial interference with the structure of the premises and then a rebuilding, in probably a different form, of such part of the premises as has been demolished by reason of the interference with the structure'. See Joel v Swaddle [1957] 3 All ER 325 at 329; and Barth v Pritchard [1990] 20 EG 65.

b)      The landlord must show that the intention will be fulfilled shortly after the date of the hearing (Betty's Cafe v Phillips [1958] 1 All ER 607, HL). There are two elements to the concept of intention:

·        a genuine desire that the result will come about and

·        a reasonable prospect of bringing about that result.

In Edwards v Thompson [1990] 29 EG 41, the landlord failed to prevent the grant of a new tenancy because she had not found a developer at the time of the hearing and 'there was a real possibility that [she] would not be in a position to carry out the entire development on the termination of the current tenancy....She had failed to show that she had the means and ability; she had not established the necessary intention.' It is not essential that a landlord obtain planning permission in advance if it can be shown that there is a reasonable prospect of getting consent (see Gregson v Cyril Lord [1962] 3 All ER 907).

c)      The landlord must show that because of one of four specified reasons, the intended work cannot reasonably be carried out without the tenant giving up possession of the premises. 'Possession' means 'putting an end to legal rights of possession' and not merely access (see Heath v Drown [1972] 2 All ER 561 and HA 1988 s16).

d)      This ground is not available to a landlord who has acquired his or her interest in the property by purchasing it after the grant of the tenancy.

e)      possession order is made under this ground the landlord must pay a sum equal to the tenant's reasonable removal expenses (section 11(l)).

Ground 7 - Death of the Tenant

Although an assured tenancy may pass by will or on intestacy after the death of a tenant, the landlord may obtain possession if proceedings are brought within twelve months of the death of the tenant or the date upon which the landlord became aware of the death. 'Proceedings for possession' means court proceedings, not the service of a s8 notice (Shepping v Osada [2000] 30 EG 125, [2001] L&TR 489, (2000) The Times March 23, CA).

This ground does not apply if a spouse succeeds to the tenancy under section 17. The Act specifies that acceptance of rent after the death of the former tenant should not be regarded as creating a new tenancy unless the landlord has agreed in writing to a change in the terms of the tenancy, such as an increase in rent.

Ground 8 - Two months' rent arrears

As amended by Housing Act 1996 s101.

This is the first of three distinct grounds for possession based on rent arrears, although in practice most landlords plead all three in the alternative. Under Ground 8, two months' rent arrears (or eight weeks' arrears in the case of a weekly tenancy) give a landlord an automatic right to a possession order. However the landlord must prove that there are two months' arrears, both at the time when the notice of the landlord's intention to bring proceedings is served and at the date of the hearing.

Judges are entitled to find that Ground 8 is satisfied despite the fact that housing benefit is owed by the local authority (Marath v MacGillivray (1996) 28 HLR 484, CA where the local authority paid benefit after the hearing with the result that the arrears were reduced below the Ground 8 threshold).

If possession proceedings are brought during the fixed term of a tenancy, there is no power to grant relief from forfeiture - County Courts Act 1984 s138 does not apply - Artesian Residential Investments v Beck [2000] 2 WLR 357, [1999] 3 All ER 113, CA, but does the court have power to adjourn for a short period so that those problems can be sorted out? Probably, by analogy with Birmingham Citizen Permanent BS v Caunt [1962] ChD 883, ChD, R v Circuit Judge ex p Wathen (1976) 33 P&CR 423, DC and the House of Lords decision in Bristol CC v Lovell [1998] 1 All ER 775, HL, if the decision to adjourn is made before evidence is given. See too Hoffman v Cueto-Corondo and Filipe April 2000 Legal Action 32, Edmonton County Court and s9(1) and (6).

With all 'rent arrears' grounds, there may be:

a)      the possibility of a defence of set off, based on a counterclaim for breach of repairing obligations (express terms, Landlord and Tenant Act 1985 section 11, Defective Premises Act 1972, quiet enjoyment etc). See British Anzani (Felixstowe) v International Marine Management [1980] 1 QB 137; Chiodi v De Marney [1988] 41 EG 80, CA; and Davies v Peterson (1989) 21 HLR 63, CA

or

b)      a defence relying upon Landlord and Tenant Act 1987 s48; see:

·        Dallhold Estate v Lindsey [1992] 23 EG 112, CA

·        Hussain v Singh [1993] 31 EG 75, CA

·        Rogan v Woodfield Building Services [1995] 20 EG 132, CA

·        Drew-Morgan v Hamid-Zadeh [1999] EGCS 72, (2000) 32 HLR 316,CA

14.25.4 Discretionary Grounds

Ground 9 - Suitable Alternative Accommodation

The availability of suitable alternative accommodation, either at the time of the hearing or when the order is to take effect, is a ground for possession. Part III of Schedule 2 gives further clarification as to the matters to be taken into account when determining whether or not accommodation is suitable. When a possession order is made under this ground, the landlord must pay a sum equal to the tenant's reasonable removal expenses (section 11(1)).

Ground 10 - Rent arrears

A landlord must prove that there were rent arrears both at the date when proceedings were begun and, unless the court considers it 'just and equitable' to dispense with the need for service of a notice prior to issue, that there were arrears when the notice was served. In theory a possession order may be made even if the arrears are paid off before the hearing, although in most circumstances there would be strong grounds for arguing that it would not be reasonable to make an order. See Dellenty v Pellow [1951] 2 All ER 716, CA and Lee-Steere v Jennings (1987) 20 HLR 1, CA.

Ground 11 - Persistent delay in paying rent

Even if there are no arrears on the date when possession proceedings are issued, persistent delay in paying rent which is due is a ground for possession. The phrase 'persistent delay' is not defined, but is likely to have the same meaning as in Landlord and Tenant Act 1954 s30(1)(b) -- i.e. one instalment of rent has been in arrear for a significant period of time or instalments have persistently been paid late, or both. See Hopcutt v Carver (1969) 209 EG 1069 and Horowitz v Ferand [1956] CLY 4843 (cc).

Ground 12 - Breach of any obligation

This ground applies if 'any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed.'

Ground 13 - Waste or neglect

This ground applies not only to premises let, but also to common parts.

Ground 14 - Anti-social behaviour

As inserted by Housing Act 1996 s148.

The tenant or a person residing in or visiting the dwelling-house:

a)      has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in lawful activity in the locality; or

b)      has been convicted of:

·        using the dwelling house or allowing it to be used for immoral or illegal purposes, or

·        an arrestable offence committed in, or in the locality of, the dwelling house. (The italics denote the main changes between the old and the new grounds.) There is no requirement that any person visiting the premises and causing a nuisance should be there lawfully. The ground is wide enough, for example, to encompass behaviour by a former partner of a tenant who has been excluded, but returns contrary to the tenant's wishes.

(In relation to the former Ground 14, see Northampton BC v Lovatt [1998] 07 EG 142, CA.)

Arrestable offences are defined by Police and Criminal Evidence Act 1984 s24 and include all offences for which the sentence is fixed by law (eg life imprisonment), offences for which adults may be sentenced with terms of imprisonment of five years or more, taking motor vehicles without authority and offences under Sexual Offences Act 1956 ss22 and 23 (causing prostitution of women and procuring girls under 21)

See too Northern British Housing Association v Sheridan, (2000) 32 HLR 346, CA.

Ground 14A - Domestic violence

As inserted by Housing Act 1996 s149.

This ground applies where one of both partners is a tenant and:

a)      one partner has left because of violence or threats of violence by the other towards that partner or a member of that partner's family; and

b)      the court is satisfied that the partner who has left is unlikely to return.

Landlords seeking to rely upon this ground must satisfy the court that notice of proceedings for possession has been served on the partner who has left the home or that they have taken reasonable steps to effect service (Housing Act 1996 s150).

Where possession is sought under Ground 14A, it is not sufficient that the alleged violence or threats of violence were merely one of a range of causes of equal efficacy in the victim's departure from the property. For the ground to be made out it has to be established that the alleged violence or threat of violence was the dominant, principal and real cause of the departure (Camden LBC v Mallett (2001) 33 HLR 204, CA).

Ground 15 - Deterioration of furniture

Ground 16 - Premises let to employees

An employer who has let accommodation to an employee 'in consequence' of employment may claim possession if the tenant has 'ceased to be in that employment'.  It applies whether or not the employer requires the premises for another employee.

Ground 17 - Tenancy induced by false statement

The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by:

a)      the tenant; or

b)      a person acting at the tenant's instigation.

This ground was introduced by Housing Act 1996 s102 and is identical to Housing Act 1985 Sched 2 Ground 5 as amended.

14.25.5 Reasonableness

The criteria for establishing whether or not it is reasonable to make an order for possession against an assured tenant are the same as those used in proceedings against secure tenants. See e.g. West Kent Housing Association v Davies (1998) 31 HLR 415, [1998] EGCS 103, CA.

As to suspension of possession orders, see s9 and the notes on Housing Act 1985 s85 above. Section 9 'gives a wide power to stay or suspend an order for possession which is applicable to all cases except those where it is expressly excluded by statute.' The power may be exercised where circumstances have changed since the original hearing, even where an outright order was made by a different judge (Ujima HA v Smith April 2001 Legal Action 22, (2000) October 16, ChD, where the defendant was by the time of the application to suspend accepting her legal responsibility for serious damage to a shared kitchen and offering to pay £150 in compensation).

14.25.6 Assured shorthold tenancies

Requirements for assured shorthold tenancies

a)      Tenancies granted before 28 February 1997

Housing Act 1988 s20 stipulated four requirements for the creation of an assured shorthold tenancy:

·        It must be for a fixed term of not less than six months;

·        It must not contain any provision enabling the landlord to terminate the tenancy within six months of the beginning of the tenancy;

·        Notice in the prescribed form must be served before the commencement of the tenancy stating that the tenancy will be an assured shorthold tenancy. The court has no power to dispense with service of this notice. The form of the notice is prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1988. See York and Ross v Casey [1998] 2 EGLR 25, (1999) 31 HLR 209, CA and Clickex Ltd v McCann [1999] 30 EG 96, CA

·        It would be an assured tenancy but for these three requirements being satisfied.

b)      Tenancies granted on or after 28 February 1997

Housing Act 1996 section 96 and Sched 7 take effect as a new Housing Act 1988 s19A and Sched 2A. They provide that all tenancies entered into on or after 28 February 1997 which would otherwise have been assured tenancies are automatically assured shorthold tenancies lacking long term security of tenure unless certain exceptions apply (See Schedule 2A). This applies whether the tenancy is granted orally or by a written agreement. In other words, the requirement of a s20 notice informing the tenant that the tenancy would be an assured shorthold tenancy has been abolished.

Possession proceedings

Housing Act 1988 s21 provides:

'21(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied:

a)         that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than a statutory periodic tenancy; and

b)         the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months' notice in writing stating that he requires possession of the dwelling-house.'

All that a landlord need do to recover possession is to:

a)      prove that the tenancy has come to an end and that no new tenancy has been granted; and

b)      give at least two months' notice to the tenant that the landlord requires possession; and

c)      take court proceedings.

If landlords comply with these requirements, they are automatically entitled to possession. The court has no power to suspend possession orders, apart from Housing Act 1980 s89(1) which provides that orders for possession must take effect no later than 14 days after the court order unless exceptional hardship would be caused, in which case the maximum period that may be allowed is six weeks.

The section 21 notice:

a)      may be given before any fixed term expires or even at the beginning of the tenancy (s21(2));

b)      need not be in any particular form, although it must be in writing (Housing Act 1996 s98);

c)      may be given by only one of several joint landlords (s21(4)(a)).

There is no power to dispense with service of the notice.

It is important to check that:

a)      the notice gives at least two months notice although no actual date need be specified provided that 'the tenant knows or can easily ascertain the date referred to.' Lower Street Properties Ltd v Jones [1996] 48 EG 154, CA

b)      if the tenancy is a periodic tenancy, the date specified in the notice is (or the period of notice given in the notice expires on) 'the last day of a period of the tenancy' (s21(4)(a)).

Uncertainty has been caused by the dichotomy between Housing Act 1988 s21(1)(b) and s21(4)(a). Section 21(1)(b) merely provides that the landlord must give 'the tenant not less than two months' notice stating that he requires possession of the dwelling-house'.  However s21(4)(a) provides that the date specified in a notice where there is 'a periodic tenancy' shall be 'the last day of a period of the tenancy'. Both Arden and Partington (Housing Law 1-223/4) and Walter and Harris Claims to the Possession of Land pp324-5) take the view that there is no need for the two months notice to expire on 'the last day of a period of the tenancy' if the notice is served during a fixed term assured shorthold but that this requirement has to be satisfied if the notice is served after the expiry of a fixed term (i.e. during a statutory periodic assured shorthold tenancy). In Gracechurch International v Tribhovan and Abdul (2001) 33 HLR 263, CA, CA Simon Brown LJ, while hearing an appeal on another issue, described the dismissal of possession proceedings, because a notice requiring possession from a periodic tenant did not expire on the last day of a period of the tenancy, as 'clearly correct'. This was also the approach taken in Lomas v Atkinson September 1993 Legal Action 16, where Assistant Recorder Hamilton sitting at Shrewsbury County Court dismissed a claim for possession (inter alia) because the s21 notice served after the expiration of the fixed term failed to expire on 'the last day of a period of the tenancy' as required by s21(4). See too Transeuropean Carriage Co v Abou-Hamdan July 1998 Legal Action 12, (1998) May 21, West London County Court and Chignell Investments Ltd v Deghdak June 1999 Legal Action 23, Central London County Court. However in Ujima HA v Richardson [1995] CLW 46/95 HHJ Graham sitting at Shoreditch County Court held that a landlord may either serve a notice which complies with s21(1)(b) or one which complies with s21(4).

The former approach is more likely to be correct. The use of the words 'without prejudice...to...subsection (1)' in s21(4) clearly show that the two subsections are alternatives and that s21(4) is not an additional requirement for all s21(1) notices. The words in s21(2) ('A notice under paragraph (b) of subsection (1) above may be given before or on the day on which the tenancy comes to an end') indicate that a s21(1) notice is one which can be served during a fixed term. In contrast the use of the words 'let on an assured shorthold tenancy which is a periodic tenancy' in s21(4) indicate that the s21(4)(b) requirement applies whenever a notice is served during a periodic tenancy - and that includes a statutory periodic tenancy (cf s13(1)(a) and (b) and s15(3)). This approach is also supported by Housing Act 1996 s98 which refers to s21(1) notices as being given 'under a fixed term' and s21(4) as the 'corresponding provision for periodic tenancies'.

Accordingly a notice served during a periodic assured shorthold tenancy which does not expire 'on the last day of a period of the tenancy' is unlikely to be valid.

c)      the date specified 'is not earlier than the earliest day on which...the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice.s21(4)(b)). Accordingly more than two months' notice is required where there is an express provision requiring a longer period of notice or the rental period is longer than two months, eg, where there is a quarterly tenancy, in which case three months' notice has to be given; and

d)      proceedings have not been commenced before the date specified in the notice. The claim for possession in Lower Street Properties Ltd v Jones was dismissed because proceedings were started the day before the s21 notice expired. Schiemann LJ stated it 'is implicit that the landlord cannot bring proceedings until after [the date specified in the notice]' although Kennedy LJ reached his decision on the grounds that the notice served stated 'The landlord cannot apply for such an order before the notice has run out', and left open whether, with a different wording, proceedings could have been begun before expiry;

e)      if the tenancy is one to which Housing Act 1988 s19A applies, that any possession order will not take effect earlier than six months after the grant of the original tenancy (Housing Act 1988 s21(5) as inserted by Housing Act 1996 s99).

Part 4: Mortgages

14.26 Introduction

Although some mortgages are regulated by the Consumer Credit Act 1974, most mortgage possession proceedings are governed by the provisions of the Administration of Justice Acts 1970 and 1973. These Acts, although considered daily in the county courts, received very little attention from the Court of Appeal for the first twenty years of their existence. The last few years have however seen a significant increase in appeals and this has resulted in a dozen or so reported decisions. This body of case law has had a marked effect upon practice in the county courts.

14.27 Power to suspend or to delay date for possession

Administration of Justice Act 1970 s36(1) provides:

'Where the mortgagee under a mortgage of land which consists of or includes a dwelling-house brings an action in which he claims possession...(not being an action for foreclosure in which a claim for possession...is also made) the court may exercise any of [its] powers...if it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any other obligation arising under or by virtue of the mortgage.'

Section 36(2) provides that the court:

a)      may adjourn the proceedings, or

b)      on giving judgment, or making an order, for delivery of possession...or at any time before execution of such judgment or order may:

·        stay or suspend execution of the judgment or order; or

·        postpone the date for delivery of possession

for such period or periods as the court thinks reasonable.

The court's powers under s36 apply equally to repayment mortgages and endowment mortgages (Bank of Scotland v Grimes [1985] 2 All ER 254, CA). However, borrowers cannot rely upon s36 where a charge securing a bank overdraft provides that the sum owed shall only become payable on demand, (an 'all moneys charge') since, in those circumstances, there is no agreement to defer payment (see AJA 1973 s8 and Habib Bank Ltd v Taylor [1982] 3 All ER 561, CA and Rees Investments Ltd v Groves [2001] June 27, ChD) In those circumstances 'the court has no jurisdiction to decline the order or to adjourn the hearing, whether on terms of keeping up payments or paying arrears, if the mortgagee cannot be persuaded to agree to this course' (Birmingham Citizens Permanent Building Society v Caunt [1962] Ch 883, ChD.) In Caunt Russell J stated that the sole exception to this rule is that possession proceedings:

'may be adjourned for a short time to afford the mortgagor a chance of paying off the mortgagee in full or otherwise satisfying him; but this should not be done if there is no reasonable prospect of this occurring. When I say the sole exception, I do not, of course, intend to exclude adjournments which in the ordinary course of procedure may be desirable in circumstances such as temporary inability of a party to attend, and so forth.' (p912)

In Royal Bank of Scotland v Miller [2001] EWCA CIV 344, (2001) February 27, CA it was held that (1) the relevant time for determining whether land consists of or includes a dwelling-house within the meaning of s36 is the time when the mortgagee claims possession, not the date when the legal charge is entered into; and (2) breach of a term of the mortgage (e.g. occupation by a third party without consent) does not prevent s36 from applying.

The court's power under s36 to adjourn mortgage possession proceedings, stay or suspend execution or postpone the date for delivery of possession ceases after a warrant has been executed. (Cheltenham and Gloucester Building Society v Obi (1996) 28 HLR 22, CA.)

A bankrupt has locus standi to make an application to the court for relief under Administration of Justice Acts 1970 and 1973 (Nationwide BS v Purvis [1998] BPIR 625, CA).

14.28 Criteria and evidence

The borrower must, on the balance of probabilities satisfy the court that it is likely that the arrears will be cleared within a reasonable period. The court cannot suspend an order for possession under s36, however hard the circumstances, if there is no prospect of the borrower reducing the arrears. (Abbey National Mortgages v Bernard (1995) 71 P&CR 257, CA)

The defendant need not always produce evidence in the normal formal sense (eg witness statement, affidavit or on oath). In Cheltenham and Gloucester Building Society v Grant (1994) 26 HLR 703, CA where the building society unsuccessfully challenged the common practice of district judges exercising their discretion under AJA 1970 without hearing sworn evidence from borrowers, Nourse LJ stated that:

'it must be possible for [judges] to act without evidence, especially where, as here, the mortgagor was present in court and available to be questioned and no objection to the reception of informal material is made by the mortgagee. Clearly, it will sometimes be prudent for the mortgagor to put in an affidavit before the hearing.' (p707)

The Court of Appeal declined to lay down rigid rules as to how 'busy district judges' should satisfy themselves as to the requirements in s36 and upheld the original order made by the district judge that a possession order should not be enforced without leave of the court while regular payments were made.

14.29 Reasonable period

One crucial question which has to be answered in every case is 'What is a reasonable period?' The phrase is not defined by the Administration of Justice Act.

In Centrax Trustees v Ross [1979] 2 All ER 952, ChD, Goulding J stated that in assessing how long a reasonable period might be, the court must 'bear in mind the rights and obligations of both parties, including [the lender's] right to recover their money by selling the property, if necessary, and the full past history of the security.'

In First Middlesbrough Trading and Mortgage Co Ltd v Cunningham (1974) 28 P&CR 69, CA, Scarman LJ, when considering what is a 'reasonable period' within s36, stated:

'since the object of the instalment mortgage was, with the consent of the mortgagee, to give the mortgagor the period of the mortgage to repay the capital sum and interest, one begins with a powerful presumption of fact in favour of the period of the mortgage being the 'reasonable period''. (p75)

In Western Bank v Schindler [1977] Ch 1; [1976] 2 All ER 393, CA Buckley LJ stated:

'What must be reasonable must depend on the circumstances of the case....In a suitable case the specified period might even be the whole remaining prospective life of the mortgage'. ([1976] 2 All ER at p400)

These passages were obiter but were followed by the Court of Appeal in Cheltenham and Gloucester Building Society v Norgan [1996] 1 All ER 449, (1995) 28 HLR 443, (1996) 72 P&CR 46, CA. Waite LJ stated that in determining 'a reasonable period':

'the court should take as its starting point the full term of the mortgage and pose at the outset the question: would it be possible for the mortgagor to maintain payment-off of the arrears by instalments over that period?' (p458)

In Norgan there had been a history of arrears. In May 1990, when arrears stood at £7,216, the building society obtained a possession order suspended for 28 days. In December 1990 the terms of the suspension were varied, but not complied with, and the building society obtained a warrant. The warrant was twice suspended on terms, but when the borrower failed to comply, the building society applied to reissue the warrant and the borrower cross-applied for a further suspension. The district judge gave leave to reissue the warrant and refused any further suspension. By the time the appeal came on before the circuit judge the arrears were in the region of £20,000. He dismissed the borrower's appeal and she appealed to the Court of Appeal. The Court of Appeal allowed her appeal.

Evans LJ set out a number of considerations which are likely to be relevant when establishing what is a reasonable period.

They include:

'a)        How much can the borrower reasonably afford to pay, both now and in the future?

b)         If the borrower has a temporary difficulty in meeting his obligations, how long is the difficulty likely to last?

(c) What was the reason for the arrears which have accumulated?

(d) How much remains of the original term?

(e) What are the relevant contractual terms, and what type of mortgage is it, ie when is the principal due to be repaid?'

Other matters which may be relevant include family circumstances and the income of other members of the family. If arrears have accrued as a result of matrimonial breakdown, are any proceedings for ancillary relief likely to result in an order which will enable arrears to be paid off? Is the Benefits Agency (or should it be) paying anything towards the interest due on the mortgage?

14.30 Security at risk

Norgan was a case where the lender's security was not at risk. Courts are likely to be far more cautious about exercising s36 powers where there is already negative equity or where there is a risk of negative equity. In Norgan Waite LJ recognised that there would be cases where evidence might 'be required to see if and when the lender's security will become liable to be put at risk as a result of imposing postponement of payments in arrear'. (p459) Evans LJ indicated that courts should ask 'Are there any reasons affecting the security which should influence the period for payment?' (p463) Similarly in First Middlesbrough Trading and Mortgage Co Ltd v Cunningham the Court of Appeal stated that when exercising its AJA discretion, one of the 'relevant surrounding circumstances' which the court is entitled to take into account is the fact that the debt might be inadequately secured. Sometimes borrowers produce letters from estate agents in order to satisfy the court about the value of the property in comparison with the amount of the loan outstanding, but in Bristol and West BS v Ellis (1997) 29 HLR 282, CA the Court of Appeal stated that judges should approach such estimates with 'reserve'. If a borrower's valuation is disputed, it may be necessary for there to be an adjournment for an independent valuation so that the court can determine whether the lender's security is at risk.

14.31 Sale of the property

In most cases borrowers try to satisfy the court that it is likely that the arrears will cleared within a reasonable period by giving evidence about their income and expenditure. However, where borrowers' income is not sufficient to repay arrears, they may seek time in which to sell the property so that the outstanding balance (including arrears) can be paid from the proceeds of sale.

In National and Provincial Building Society v Lloyd [1996] 1 All ER 630, (1995) 28 HLR 459, CA, the Court of Appeal considered an appeal against a decision to suspend a possession order to give the borrower time to sell premises and so clear mortgage arrears. The building society argued that any such suspension should only be for a short period. Neill LJ rejected this submission. If there is clear evidence that completion of the sale of a property 'could take place in six or nine months or even a year', there was no reason why the court could not come to the conclusion that it was likely that the arrears would be repaid within a reasonable period. What is 'a reasonable period' is a question for the court in each individual case. However, in Lloyd there was insufficient evidence before the judge to show that the arrears would be paid within a reasonable period. Much of it was 'a mere expression of hope' and accordingly the building society's appeal against the suspension was allowed.

In Bristol and West BS v Ellis (1997) 29 HLR 282; (1996) 73 P&CR 158, CA, the Court of Appeal confirmed that what is a reasonable period for sale depends on the individual circumstances of each case, particularly the extent to which the mortgage and arrears are secured by the value of the property. In Ellis the Court of Appeal allowed a lender's appeal against an order which would have allowed the borrower three to five years (when her children would have finished university education) to sell because there was insufficient evidence that Mrs Ellis could or would sell the property within that period or that the proceeds of sale would be sufficient to discharge the mortgage debt and arrears. The Court stated that the comments by Neill LJ in National and Provincial BS v Lloyd [1996] 1 All ER 630 that sale 'could take place in six or nine months or even a year' did not establish a year as the maximum period 'as a rule of law or as a matter of general guidance'. (See too Cheltenham and Gloucester BS v Johnson (1996) 28 HLR 885, CA where Lloyd was followed.)

In most cases where the security is not at risk, the court will adjourn or make a suspended order to allow the borrowers to arrange a sale. It is generally accepted that borrowers occupying premises achieve a better price on sale than lenders through 'forced sales'. For example in Target Home Loans v Clothier [1994] 1 All ER 439; (1993) 25 HLR 56, CA borrowers paid no mortgage instalments for over 15 months and when possession proceedings came to court there were arrears of £46,000. The lenders sought an immediate possession order, but the district judge adjourned for 56 days under s36. When the Court of Appeal heard the appeal, there was a letter from estate agents indicating that an offer of £450,000 for the house had been received. Nolan LJ, after asking whether there was a prospect of an early sale, stated:

'If so, is it better in the interests of all concerned for that to be effected by [the borrower] and his wife or by the mortgage company? If the view is that the prospects of an early sale for the mortgagees as well as for [the borrower] are best served by deferring an order for possession, then it seems to me that that is a solid reason for making such an order...'([1994] 1 All ER at p447)

The Court of Appeal made a possession order to take effect in three months.

Even if the power to suspend execution under Administration of Justice Act 1970 s36 cannot be exercised because it is unlikely that the borrower can repay arrears within a reasonable period, the county court still has a residual inherent jurisdiction to defer the giving up of possession in order to enable the lender to sell the property (Cheltenham and Gloucester plc v Booker (1997) 29 HLR 634; (1997) 73 P&CR 412; [1997] 1 EGLR 142 (1996) Times, November 20, CA.) In such circumstances the court may give conduct of the sale of premises to the lender while postponing execution of a warrant for possession until completion of the sale, thus allowing the borrower to remain in occupation. There is no reason in principle for the court to accede to a lender's insistence upon immediate possession if:

a)      possession will only be required on completion;

b)      the presence of the borrowers pending completion will enhance, or at least not depress, the sale price;

c)      the borrowers will cooperate in the sale; and

d)      they will give possession to the purchasers on completion.

However in Booker Millett LJ stated these conditions are seldom likely to be satisfied and the circumstances in which such a course would be appropriate are hard to imagine. Such an order would 'certainly be a rarity'.

If a lender does not agree to a borrower selling premises, the borrower may apply for an order for sale under Law of Property Act 1925 s91(2). Such an application may be made in a county court if 'the amount owing in respect of the mortgage or charge at the commencement of the proceedings does not exceed £30,000' (The High Court and County Courts Jurisdiction Order 1991, para 2(4)). If the amount owing is more than £30,000 a section 91 application has to be made in the High Court. In Cheltenham and Gloucester BS v Krausz [1997] 1 All ER 21, CA. the Court of Appeal held that a district judge in the county court has no jurisdiction to suspend a warrant in these circumstances. Phillips LJ did not consider 'that the County Court, as part of its inherent jurisdiction, can properly suspend an order or warrant for possession in order to enable a mortgagor to apply to the High Court for an order under section 91. It [is] incumbent on the mortgagor to seek from the High Court any relief which the court is empowered to give before the warrant takes effect.' He noted that s36 makes it clear that parliament did not intend that the court should have power to curtail mortgagees' rights to possession unless the proceeds of sale were likely to discharge the mortgage debt.

PART 5: Civil Procedure Rules Part 55

New CPR Part 55 - due to be implemented on 15 October 2001.

14.32 Materials

Civil Procedure (Amendment) Rules 2001 SI No. 256, Schedule 1.

Practice direction.

Forms

N206 A Notice of Issue

N206 B Notice of Issue

N5 Claim form for possession of property

N5A Claim form for relief against forfeiture

N119 Particulars of claim for possession (rented residential premises)

N7  Notes for defendant

N7A Notes for defendant

N11R Defence form (rented residential premises)

N120 Particulars of claim - mortgaged residential premises

N11M Defence form - mortgaged residential premises

N5B Claim form - accelerated possession procedure

N11B Defence to possession claim - accelerated procedure

N7B Notes for defendant - forfeiture claim

N121 Particulars of claim - trespassers

N11 Form of defence

N26 Order for possession

N27 Order for possession (forfeiture)

N28 Order for possession (rented residential premises)(suspended)

N440 application for time order

14.33 Application

Part 55 must be used where claim includes possession claim brought by:

a)      the landlord

b)      the lender

c)      the licensor

(CPR 55.2)

14.34 Trespassers

Part 55 must also be used in a claim against trespassers. The replacement to CCR Ord 24 and RSC Ord 113 is within Part 55.

A claim against trespassers means a claim for the recovery of land which the claimant alleges is occupied only by a person or persons who entered or remained on the land without the consent of a person entitled to possession of that land but does not include a claim against a tenant or sub-tenant whether his tenancy has been terminated or not: (CPR 55.1(b)). Reverses the former position - Moore Properties (Ilford) Ltd v McKeon [1976] 1 WLR 1278, ChD.

But Part 55 does not apply where landlord seeks interim possession order under Criminal Justice and Public Order Act 1994 - CCR Ord 24 Pt II.

14.35 Which court?

Possession claims must be started in county court for district where property situated (CPR 55.3(1)).

But a claimant can start in High Court if there are exceptional circumstances (PD55 para 2.1), e.g.:

a)      complicated disputes of fact;

b)  points of law of general importance;

c)      claim against trespassers and substantial risk of public disturbance to persons or property which require immediate determination;

d)      The value of property and amount of financial claim may be a relevant circumstances - but they alone will not normally justify starting the claim in the High Court.

PD points out consequences of issuing in High Court when not justified.

14.36 Claim form

Must be in prescribed form (PD55 para 2.6)

Must be verified by statement of truth (CPR 22.1)

In claim against trespassers, if claimant does not know the name of a person in occupation, must be brought against 'persons unknown' in addition to any named defendants (CPR 55.3(4)).

If issued in High Court must be accompanied by certificate stating reasons for bringing claim in High Court, verified by a statement of truth.

14.37 Particulars of claim

Must be filed and served with claim form (CPR 55.4)

All particulars of claim must:

a)      comply with CPR 16

b)      contain concise statement of facts

c)      if interest is sought, give details

d)      identify the land to which the claim relates (PD55, para 2.1(1))

e)      state whether it is residential property (PD55, para 2.1(2))

f)        state ground on which possession is claimed (PD55, para 2.1(3))

g)      give full details of any mortgage or tenancy agreement (PD55, para 2.1(4))

h)      give details of every person who, to the best of the claimant's knowledge, is in possession of the property (PD55, para 2.1(5))

14.38   Additional requirements for particulars of claim where tenancy of residential premises

(PD55 para 2.3)

If non-payment of rent:

a)      amount due at start of proceedings;

b)      in schedule form, dates when arrears of rent arose, all amounts of rent due, the dates and amounts of all payments made and a running total of the arrears;

c)      daily rate of any rent and interest;

d)      any previous steps taken to recover arrears, with full details of any court proceedings;

e)      any relevant information about defendant's circumstances, including details about benefits and payments direct.

Also:

a)      name of any person known to be entitled to apply for relief from forfeiture

b)      claimant must file copy of particulars of claim for service upon him (PD55 para 2.4)

14.39   Additional requirements for particulars of claim where mortgage of residential premises

(PD55 para 2.5)

If residential premises:

a)      whether Class F land charge has been registered, or a notice under Matrimonial Homes Act 1983 has been entered and whether a notice under Family Law Act 1996 has been registered; if so claimant must serve notice of proceedings on such a person;

b)      state of the mortgage account, including;

·        amount of advance, periodic payment and interest required;

·        amount needed to redeem mortgage including solicitors costs and administration charges;

c)      if regulated consumer credit agreement, total amount outstanding;

d)      rate of interest payable.

If claim based on arrears:

a)      in schedule form, dates when arrears arose, all amounts due, the dates and amounts of all payments made and a running total of the arrears;

b)      details of all other payments to be made and claimed ;

c)      any relevant information about defendant's circumstances, including details about benefits and payments direct;

d)      any previous steps taken to recover arrears, with full details of any court proceedings.

Additional requirements for particulars of claim where claim against trespassers premises (PD55 para 2.6). Must state:

a)      claimant's interest in land;

b)      circumstances in which occupied without licence of consent.

c)      Effect of failure to comply - CPR 3.10.

14.40 Service

Normal rules in CPR Part 6 apply (personal service, first class post, leaving at last known address, document exchange, fax by court, or claimant).

Where claim against trespassers who are persons unknown by:

a)      attaching to main door or some other part clearly visible; and

b)      though letter box in sealed transparent envelope addressed to 'the occupiers'; or

c)      placing stakes in the land.

(If these methods are to be used, claimant must supply the court with sufficient stakes and transparent envelopes (PD55 para 4.1)

14.41 Defendant's response

a)      CPR Part 10 (acknowledgement of service) does not apply (CPR 55.7(1)).

b)      CPR Part 12 (default judgment) does not apply (CPR 55.7(4)).

c)      Must be in form annexed to PD (PD 55 para 1.5).

d)      CPR 15.2 (defendant who wishes to defend must file defence within 14 days) does not apply in claim against trespassers (CPR 55.7(2)).

e)      In any other possession claim defendant may take part, but failure to file or serve defence may be taken into account when deciding costs order. (CPR 55.7(2))

f)        In Consumer Credit Act cases, borrower may apply for time order in defence or by application in proceedings (PD55 para 7.1) and N440)

g)      Hearing dates. Court will fix a date on issue (CPR 55.5(1)

14.42 Time between service and hearing must be at least

The time between service and hearing must be at least:

a)      two days (trespassers - non-residential land)

b)      five days (trespassers - residential premises

c)      twenty-one days (all other possession claims)

(CPR 55.5(2) and (3))

In addition:

a)      hearing date will be not less than 28 days from date of issue (CPR 55.5(3)(a))

b)      standard period between issue and hearing will be not more than 8 weeks (CPR 55.5(3)(c))

But time may be shortened (CPR 3.1(2)(a)). Particular consideration should be given to shortening time where:

a)      the defendant, or a person for whom the defendant is responsible, has assaulted or threatened to assault:

·        the landlord;

·        a member of the landlord's staff; or

·        another tenant;

b)      there are reasonable grounds for fearing such an assault; or

c)      the defendant, or a person for whom the defendant is responsible, has caused serious damage or threatened to cause serious damage to the property or to the home or property of another resident. (PD 55, para 3.2)     

14.43 At the hearing (or any adjournment)

The court may:

a)      decide the claim; or

b)      give case management directions (CPR 55.8(1).

14.44 Case management

If the claim is genuinely disputed on grounds which appear to be substantial, directions will include allocation to track or directions to enable it to be allocated

14.45 Allocation

Only allocate to SCT if all parties agree (CPR 55.9(2)). If allocated to small claims track, FT costs regime applies but trial costs in the discretion of the judge and shall not exceed amount of FT costs allowable in CPR 46.2 if the value were upto £3,000 - i.e. currently £350. (CPR 55.9(3)).

Consider:

a)      CPR 26.8;

b)      amount of arrears of rent or mortgage instalments;

c)      importance to defendant of retaining possession;

d)      importance of vacant possession to claimant.

PD 55 para 6.1 - financial value not necessarily the most important factor - claim may be allocated to FT even though the value of the property is in excess of £15,000.

14.46 Preparation for hearing

Apart from claims against trespassers, all witness statements must be filed and served at least two days before hearing. Should include evidence of arrears up to date at hearing - if necessary by including daily rate - but not prevent it being brought up to date at hearing. (PD 55 para 5.2)

Defendant should give evidence about amount of outstanding benefits and state of benefit claims (PD 55 para 5.3).

Mortgage possession claims - claimant should not less than 14 days before hearing send notice addressed to the occupiers giving details of hearing - and must produce a copy and evidence of service at the hearing. (CPR 55.10)

Where claimant serves claim form and particulars of claim, claimant must produce certificate of service at hearing (CPR 55.8(6))

14.47 Evidence at hearing

If not allocated, or allocated to SCT, any fact that needs to be proved may be proved by evidence in writing - witness statement or claim form with statement of truth. (CPR 55.8(3)). But if disputed and maker of witness statement not present, court will normally adjourn so that oral evidence can be given. (PD55 para 5.4))

14.48 Accelerated possession procedure

Applies only to claims brought under Housing Act 1988 s21 to recover possession against assured shorthold tenant (CPR 55.11). Must be started in county court for district in which property is situated.

14.49 Conditions set out in 55.12 must be complied with

a)      tenancy entered into on or after 15 January 1989;

b)      only purpose is to recover possession - no other claim made;

c)      tenancy did not immediately follow assured tenancy which was not AST;

d)      was an AST in accordance with s19A or s20(1)(a) to (c);

e)      tenancy is subject to written agreement, or follows tenancy where there was a written agreement;

f)        s21(1) or s21(4) notice given.

Claim form:

a)      must be in form set out in PD;

b)      contain information and be accompanied by documents required in that form;

c)      all sections must be completed.

14.50 CPR 55.14 defence

Defendant who wishes to oppose claim must file defence within 14 days after service of claim form. Defence must be in form set out in PD.

14.51 Consideration by judge

(CPR 55.15)

Claim referred to judge, either:

a)      on receipt of defence; or

b)      on request of claimant after expiry of 14 days.

Judge can still consider defence if defence received out of time but before landlord's request is received. If defendant does not file defence and no request by claimant within three months after service, claim will be stayed.

14.52 Consideration of claim

(CPR 55.16)

Judge will either:

a)      make an order for possession without a hearing

b)      if not satisfied claim was served or claimant is entitled to possession, fix a hearing date and give case management directions - at least 14 days notice of hearing must be given; or

c)      strike out claim if it discloses no reasonable grounds for bringing claim - if struck out, reasons must be given with the order - claimant may within 28 days apply to restore claim

Note Manel v Memon  [2000] 33 EG 74, (2001) 33 HLR 235, (2000) Times April 20, CA where the claimant landlord brought proceedings under the accelerated possession procedure (CCR Ord 49 r6A) against the defendant claiming that he was a pre-1997 assured shorthold tenant. The tenant filed a reply denying that the landlord had served a valid s20 notice because the notice served omitted the four bullet points with instructions and advice to the tenant set out in Form 7 of the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1998 SI No. 2203. The Court of Appeal held that the bullet points and in particular the exhortation to take legal advice and the statement that the giving of the notice did not commit the tenant to take the tenancy were part of the substance of the notice. Without them the notice was not 'substantially to the same effect' as the prescribed form within the meaning of para 2 of the Regulations. The notice was defective and a possession order made by the district judge was set aside. The Court of Appeal expressed concern that the district judge adopted the accelerated possession procedure and made a possession order without giving the tenant the opportunity to make representations at an oral hearing. Holman J said:

'[The accelerated possession procedure] is a robust machinery. It depends upon district judges rigorously considering the documents which have been filed. Some replies may be little more than a plea, however genuine for mercy. But if, on the face of the reply, a matter has been raised which, if true, might arguably raise a defence; or if the documents filed by the claimant might arguably disclose a defect in his claim, then the district judge must necessarily be 'not satisfied' within the meaning of C49.6A(16) and a hearing on notice must be fixed.'

Although decided under CCR Ord 49 r6A, exactly the same considerations apply to accelerated possession procedure cases under Part 55.

14.53 Postponement of possession

(CPR 55.18)

Claimant may indicate in claim form s/he is content for judge to consider postponement without a hearing. In that case judge may fix date for possession in six weeks without a hearing. Otherwise if defendant seeks postponement on ground of exceptional hardship (Housing Act 1980 s89) judge must make an order for possession within fourteen days, but direct a hearing on issue of postponement.

Hearing must be before date on which possession is to be given up.

If at hearing, if judge satisfied will be exceptional hardship, may vary date on which possession must be given up - but to no more than six weeks after date on which original order was made (PD 55 para 8.4 and Housing Act 1980 s89).

Power to set aside or vary order on application within 14 days of service of order, or on court's own initiative (CPR 55.19)

PART 6: HOUSING ACT 1996 - Anti-Social Behaviour - Injunctions and Powers of Arrest

14.54 Injunctions at common law

The Housing Act 1996 does not affect existing rights to apply for injunctions, without powers of arrest (HA 1996 s153(7)).

In general, where there is a breach of covenant, an injunction will be granted even though no damage is proved - Chatsworth Estates Co v Fewell [1931] 1 Ch 224, ChD.

See too Hampstead and Suburban Properties v Diomedous [1969] 1 Ch 248, ChD:

'nuisance or annoyance' is to be determined by 'robust and common-sense standards';

'Where there is a plain and uncontested breach of a clear covenant not to do a particular thing, and the covenantor promptly begins to do what he has promised not to do, then in the absence of special circumstances it seems to me that the sooner he is compelled to keep his promise the better....I see no reason for allowing a covenantor who stands in clear breach of an express prohibition to have a holiday from the enforcement of his obligations until the trial.'

See also Sutton Housing Trust v Lawrence (1987) 19 HLR 520, CA

But is the behaviour complained of a breach of covenant? See Lewisham LBC v Simba-Tola (1992) 24 HLR 644, CA.

Other tenants cannot rely upon the express or implied covenant for quiet enjoyment in their own tenancy agreements to compel a landlord to take proceedings against other tenants who are causing a nuisance. Failure by a landlord to take action is not a breach of the covenant for quiet enjoyment - O'Leary v Islington LBC (1983) 9 HLR 81, CA. But is there a remedy for derogation from grant? Chartered Trust plc v Davies [1997] 49 EG 135, CA, cf

Hussain v Lancaster City Council [1999] 2 WLR 1142, (1998) Times May 27, CA. What about Human Rights Act 1998 s6 and ECHR Article 8?

Procedure

a)      CPR 25.3 and PD to Part 25, para 5.

b)      Application in Form N16A.

c)      The application must be supported by evidence unless the court orders otherwise (CPR 25.3(2)). If the application is made without notice, the evidence must state the reasons why notice has not been given (CPR 25.3(3)).

d)      If an application is made without notice, a return date must be given (PD to 25, para 5.1(3)).

14.55 Injunctions under Housing Act 1996 ss152 - 3 and powers of arrest

14.55.1 Implementation

Sections 152, 153, 154, 155(1) and (2)(a), 157 and 158 (applications for injunctions to restrain anti-social behaviour) were brought into force on 1 September 1997 by the Housing Act 1996 (Commencement No.11) Order 1997 SI No. 1851.  The remainder of Part V (s155(2)(b) (remands), 155(3)-(7) (warrants for arrest), 156 (remand for medical examination) or Sched 15 (provisions corresponding with civil procedure in magistrates courts)) was implemented on 15 October 2001.

14.55.2 Housing Act 1996 Part V, Chapter III - the law       

1. Free standing injunctions under s152

On an application by a local authority (NB not just a local housing authority), the county court or the High Court may grant an injunction prohibiting anyone from:

a)      engaging in or threatening to engage in conduct causing or likely to cause a nuisance or annoyance to anyone residing in, visiting or otherwise engaging in lawful activity in residential premises or in the locality of such premises; or

b)      using or threatening to use residential premises for immoral or illegal purposes; or

c)      entering residential premises or being found in the locality of such premises. (HA 1996 s152(1)

This power arises whether or not there is any other common law or statutory cause of action.

Under HA 1996 s152 applications for injunctions may be made against any person, whether or not s/he is a tenant.

'Residential premises' are defined as dwelling-houses held under secure or introductory tenancies (see HA 1996 ss124 - 143) or accommodation provided in accordance with local authorities' duties towards the homeless (formerly HA 1985 Part III, now HA 1996 Part VII). 

In order to obtain an injunction, the applicant must satisfy the court that the respondent has used or threatened to use violence towards a resident, visitor or other person engaging in lawful activity and that there is a significant risk of harm to another tenant, visitor or person in the locality. 'Harm' is defined by s158 as meaning 'ill treatment or the impairment of health'. Section 158 also states that health includes both physical and mental health.

The phrase 'or otherwise engaging in lawful activity in residential premises or in the locality of such premises' was considered in Enfield LBC v B (a minor) [2000] 1 WLR 2259, [2000]1 All ER 255, (1999) Times, 7 September, CA. It was held that a s152 only comes into play if there is a factual nexus between the lawful activity of the victim and the residential premises. In this case s152 did not apply simply because of the coincidence that Social Services Department office workers were in a building in the locality of residential premises. The Court doubted but left open the proposition that s152 cannot apply to minors - but see H v H (a child)(occupation order: power of arrest) (2001) The Times January 10, CA (The court has the power to attach a power of arrest to an occupation order made under Family Law Act 1996 s47(2) against a minor by suggesting that such a power of arrest could not be made against a seventeen year old, wording was implied upon the provisions of s.47(2) of the Act that just was not there) and Wookey v Wookey [1991] 3 All ER 365, CA.

If the court considers it 'just and convenient to do so', injunctions may be granted without notice. In such circumstances, the respondent should have the opportunity to make representations as soon as just and convenient (HA 1996 s152(7)) - i.e. via a return date, not general liberty to apply. See too PD to Part 25, para 5.1(3). cf G v G (Ouster: ex parte application) [1990] 1 FLR 395, CA.

The court may attach a power of arrest to any of the provisions in the injunction (HA 1996 s152(6)).