Raglan Housing Association Ltd v Fairclough [2007] EWCA Civ 1087

This was an appeal against an order made in the County Court granting the respondent, Raglan Housing Association, immediate possession of one of its assured tenancies.  The tenant, F, had succeeded the tenancy from his mother and later his sister.  Whilst a tenant at this tenancy, F was arrested on suspicion of offences against children but was not charged until almost 2 years later.  In the mean time he had transferred his tenancy to another property close by.  F was convicted of fifteen counts of making indecent images of children and sentenced to four years imprisonment comprising a custodial period of 12 months and an extended licence of 3 years.  The local papers carried a report of F’s conviction and Raglan Housing became aware of his offences.  Raglan served a notice on F seeking possession of his property and commenced proceedings.

The claim was made under section 7 of the Housing Act 1988 as amended by section 148 of the Housing Act 1996.  This section states that the court shall not make an order for possession let on an assured tenancy unless one or more of the grounds set out in schedule 2 applies.  The relevant grounds being that the relevant person is a

“tenant or person residing in or living in the dwelling-house … and

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

(ii) an indictable offence committed in, or in the locality of, the dwelling-house.” (Ground 14)

“Any obligation of the tenancy … has been broken or not performed.” (Ground 12)

Either of these grounds, if established, gives the court the power to grant an order for possession if it considers it reasonable to do so.  In the county court it was held that both grounds were made out and it made an order for possession in favour of Raglan Housing.  F appealed.  Permission to appeal was allowed only in respect of ground 14.

It was beyond dispute that F had been convicted of indictable offences when he was a tenant in his second tenancy.  It was also accepted that the offences had been committed in the locality of that dwelling and the facts which constituted the offences were not committed at a time when he was a tenant of that particular cottage.  However, F contended that ground 14 (b) (ii) applied only to offences committed by the tenant during the period of the tenancy of the dwelling in question and did not apply if the offences were committed before the tenancy commenced. Schneiders v Abrahams. The Court of Appeal rejected this argument on the basis that this case differed significantly on the facts and was not therefore binding on it. F had also contended that ground 14(b) (i) was concerned only with the use that tenant has made of the premises during currency of his agreement.  The court held that ground 14(b) (i) contemplated the possibility that persons other than the tenant could be convicted of the use of the property for immoral or illegal purposes therefore it was “not beyond the bounds of possibility that a person who has become the tenant might be convicted using the premises for an immoral or illegal purpose at a time before he became the tenant.”  The Court could not accept that this ground was so limited.  Nor was it limited to one particular type of behaviour likely to cause distress and annoyance to neighbours by the way the premises were used.  Paragraph (b) (ii) was directed at behaviour in the locality in general.    Ground 14 as a whole was aimed at dealing with persons in the locality of the tenancy who demonstrated by their previous behaviour that they were likely to annoy, intimidate or otherwise make themselves a serious nuisance to other residents and thereby affect their quality of life.  Persons who committed indictable offences might well fall into that category.  There was no reason to think that Parliament intended to restrict that paragraph to offences committed during the currency of the tenancy.  A tenant who was convicted of supplying illegal drugs or of burgling his neighbour’s houses posed no less of a continuing threat if the offences were committed before he became a tenant than he would if they had been committed afterwards.

Appeal dismissed.

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