Landlord applying for possession order on grounds of breach of covenants in tenancy – Judge finding breaches but not making possession order – Whether judge’s findings establishing breaches of covenants and grounds for ordering possession on statutory grounds – Whether judge erred in failing to make possession order
The defendants, husband and wife, were tenants of the landlord housing association. The tenancy was an assured weekly tenancy under Part I of the Housing Act 1988 (the Act). Clause 3 of the tenancy agreement, which set out the obligations of the tenant, contained prohibitions against the commercial use of the premises, nuisance and permitting or allowing racial harassment. Complaints were received by the landlord of breaches of covenant in that the first defendant had worked on motor vehicles on the premises late into the night; that the second defendant had threatened neighbours; and that the defendants’ eldest son had racially abused the five year old mixed race child of a neighbour. The landlord sought an order for possession (1) on ground 12 of Part II of Schedule 2 to the Act, that an obligation of the tenancy had been broken; and (2) on ground 14, that the tenant or a person residing in the house had been guilty of conduct causing a nuisance to a person residing in the locality. The numerous complaints were set out in detail in two schedules.
The judge rejected the claim that the first defendant had carried on a business on the premises, but he found that the nuisance complaint concerning the car repairs was established. The judge was also wholly satisfied that there had been racially abusive remarks and that the defendants’ eldest son had been a party to racial harassment. However, he considered that the defendants did not approve of or encourage their son’s behaviour and were not party to it. The judge declined to make a possession order or a suspended order for possession. The landlord appealed contending that the judge’s findings clearly indicated that both grounds of possession had been established, there being a covenant against causing nuisance and annoyance in the tenancy agreement, and that the judge should have made the possession order sought.
Held The appeal was allowed.
1. The judge had erred in the exercise of his discretion. From his findings it was clear that the car repairs complaint amounted to nuisance and that the complaints of threatening behaviour and racial harassment had been established. Having found those grounds established, the judge should have considered, under section 7 and Schedule 2 to the 1988 Act, whether it was reasonable to make an order for possession in all the circumstances.
2. With respect to the complaints about racial abuse, the judge had overlooked the matters in the covenant which prohibited, not only “permitting”, but also “allowing”, racial harassment. The defendants had failed to prevent their son’s behaviour: see Kensington and Chelsea Royal London Borough Council v Simmonds (1997) 29 HLR 507 per Simon Brown LJ, at p511.
3. The judge had failed to address his mind to: (a) the statutory language of ground 14, which squarely covered the behaviour of the defendants’ son and under which the knowledge of the parents was not essential; (b) the fact that clause 3 of the tenancy agreement contained the words “permitting” or “allowing”, where the parents’ knowledge and attitude was highly relevant; and (c) he had seriously underestimated the effects of such behaviour on the neighbours and on a socially responsible landlord. The court would therefore make an order for possession within 28 days to be suspended for two years.
Prashant Popat (instructed by TG Baynes & Sons, of Dartford) appeared for the appellant; John Furber QC and Michael Collard (instructed by Philip Holliday, of Swanley) appeared for the respondents.
