DO LANDLORDS HAVE A DUTY TO IMPROVE TENANT BEHAVIOUR?
Residential landlords are increasingly reporting that tackling anti-social behaviour (ASB) is becoming one of the most challenging aspects of their role in providing and managing private rented sector housing. Expectations are high; landlords are expected to be much more accountable and responsive to tenants, neighbours and the wider community in ensuring improved community cohesion.
When it comes to identifying and dealing with ASB, landlords feel these groups quite often have unrealistic expectations about what tools and powers a landlord have available to deal with ASB.
ASB largely falls into three categories:
- The tenants are engaging in misconduct at the property
- The tenants are a nuisance to the neighbours or residents in the vicinity
- The tenants are using the property for illegal activities.
So, what types of behaviour are categorised as ASB? It is almost impossible to be prescriptive about this, as it is often based on individual perceptions and tolerance levels. This creates challenges for landlords trying to manage the expectations of both tenants and the wider community. Legislation does not provide an absolute definition, but rather a loose legal definition. The range of behaviours that could be considered to be anti-social include noisy neighbours, vandalism, groups of people hanging around, neighbour disputes and more serious cases include drug dealing and harassment. The interpretation of ASB in the 2004 Housing Act adheres closely to the Crime and Disorder Act 1998 which concentrates on the impact of behaviours rather than specific types of behaviour. It defines being anti-social as:
“...to act in a way that causes or is likely to cause alarm or distress to anyone; or behave in a way that causes or is likely to cause alarm or distress to at least one person not of the same household as them.”
Resident groups based in Lenton, Nottingham, an area with large numbers of student properties describe ASB in the following way. “Streets during term-time littered with empty beer cans, smashed bottles, plastic cups and take away containers, in addition to unsightly bags of rubbish and overflowing wheelie bins. On a weekly basis, large groups travel around the area from one house party to another or in and out of town yelling obscenities to each other. The street noise can begin as early as 7 or 8 pm just as we are putting our children to bed. It can continue in periodic bursts throughout the night into the early hours and beyond. Many long-term residents have day jobs and their children have to go to school and the impact of this behaviour makes it impossible for them to function properly on a day to day basis.”
According to resident groups, reporting and achieving positive outcomes with these low level ASB issues can be challenging as often the Police are too busy and it is commonplace to be told that it is a council issue and contact should be made with the ASB helpline which, by the way, is only manned during office hours. Unfortunately, this creates a situation where the complaint can get lost in the system and consequently not being followed up, resulting in the landlord not being informed about ASB arising from their property.
To help improve the situation around ASB, EMPO believes like many others operating in the Private Rented Sector that professional landlords do have a moral duty to play a more active role in dealing with instances of ASB at and around the curtilage of their properties. This opinion can be reinforced by complaints data released by one East Midlands council showing complaint numbers across PRS housing significantly increasing over an eight-year period. On further investigation, over 60% of these complaints related to bins on streets, rubbish accumulation and noise.
As landlords, we have the ability to ensure ASB does not become a feature of our tenancies. We can start this process by ensuring our tenant tenancy agreements include clauses around:
- The management of waste - ensure the tenant has a robust process in place for emptying/storing bins during tenancy and liaising with the landlord in removing rubbish including bulky waste within a timely fashion at the end of each tenancy. This needs to include putting the right waste in the right bin and that bins are returned to the curtilage of the property by nightfall when they are emptied. All outside areas should be kept clean and tidy and free from household waste materials. There are local recycling centres if excess material needs to be disposed of. (The landlord/agent needs to ensure adequate bins are supplied for the number of tenants, therefore avoiding rubbish accumulation next to bins.)
- Nominating a lead tenant to report complaints/issues as they occur so immediate action can be taken by the landlord to remedy before the issue escalates.
- Making it clear that sub- letting or visitor stays for over a week will be a serious breach of the tenancy agreement. If there are occupiers who cause ASB, it is the tenant’s responsibility to deal with that behaviour. (However, beware Government has indicated it may bring in legislation prohibiting landlords from including clauses within a tenancy agreement which ban subletting.)
- Not making or permitting any noise or playing any radio, television or other equipment in or about the property between the hours of 10pm and 7am at a volume that is an audible nuisance outside the Property. Inform the tenant this would represent a serious breach of the tenancy.
- Not behaving in a manner which may, or may be likely to cause, a nuisance or annoyance to a person residing, visiting or otherwise engaged in a lawful activity in the locality. This responsibility includes the actions and behaviour of visitors and friends of the tenant inside and close to the residence.
- Not conducting in any activity at the property which may render the Landlord’s insurance of the property void or voidable (i.e. no longer providing cover) or increase the rate of premium for such insurance.
- Not using or allowing the property to be used for any illegal or immoral purpose (note, unauthorised taking or possession of controlled drugs is considered to be illegal for the purpose of this clause).
It is very important to highlight these clauses to each incoming tenant, stating they will be actively enforced and therefore establishing the expectation before the tenant moves into your property. Another crucial consideration before entering into any tenancy agreement is to conduct a reference check on each incoming tenant. EMPO has partnered up with www. tenantscreening.co.uk. for this service. The cost to EMPO members is under £20.00 for each reference check including a Right to Rent check.
It is worth noting particular types of tenants can lead to increased incidences of ASB. A report by HouseMark in July 2012 estimated that social landlords in England and Wales dealt with around 300,000 reported cases of anti-social behaviour in 2011/12 at a cost of £300m. Recently, tenants in receipt of Local Housing Allowance will be only too aware that from the 8th November 2016, the benefit cap was reduced and set at differing levels depending on where the rental property is located.
Typically, many tenants will now have to find between £5 and £20 extra per week to keep their rent up to date. This will include tenants housed by social housing providers, some of whom house the most vulnerable families and people in this country. It may be the case that some of these housing providers decide they are unwilling to continue housing provision to these types of tenants based on affordability. The consequence of this may be increased demand for PRS housing by these types of tenants. Private landlords who operate in this sector need to start placing more emphasis on the past histories of such persons, otherwise they may face severe problems including reputational damage, property damage and added expense linked to the eviction process.
When dealing with ASB complaints, the challenges of gathering evidence are a major concern for landlords seeking to resolve these cases, particularly when initial warnings have failed and the landlord is left with no option but to pursue enforcement action.
Unless the perpetrator admits to the allegations, the landlord will need other witnesses to come forward to corroborate the complainant’s story. Witnesses are key to most successful enforcement actions and are required to provide the credible evidence that demonstrates the distress caused by ASB. As a landlord, you should always consider - particularly in serious cases - whether to involve any of the following:
• Local Authority Noise Abatement Team. They may be able to help, for example by serving a noise abatement notice.
• Tenancy Relations Officers/ ASB Team. Local authorities often provide teams who can assist private landlords in dealing with residents who are committing ASB.
• The Police
Obviously, if a criminal offence is involved such as criminal damage or assault, you should consider involving the police. Make sure that you get a crime reference number.
Written warnings can be a very useful tool for dealing with lower level ASB and will usually serve to prevent the behaviour from escalating, particularly where the tenancy could be at risk. If this fails, the landlord can issue a section 8 notice to the tenant(s). From a tenant’s point of view, a section 8 notice escalates the situation to a more serious level as it provides two weeks’ notice to quit or suffer court action. This can trigger an immediate sea change in tenant behaviour.
When issuing a Section 8 notice you should rely on the following two discretionary grounds:
Ground 14 - Nuisance
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 a lawful activity in the locality,
(aa) has been guilty of conduct causing or likely to cause a nuisance or annoyance to the landlord of the dwelling- house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord’s housing management functions or
(b) has been convicted of-
(i) using the dwelling house or allowing it to be used for immoral or illegal purposes, or
(ii) an arrestable offence committed in, or in the locality of, the dwelling house.
The tenant or an adult residing in the dwelling- house has been convicted of an indictable offence which took place during, and at the scene of, a riot in the United Kingdom.
In this Ground – “adult” means a person aged 18 or over;
“indictable offence” does not include an offence that is triable only summarily by virtue of section 22 of the Magistrates’ Courts Act 1980 (either way offences where value involved is small);
“riot” is to be construed in accordance with section 1 of the Public Order Act 1986. that is directly or indirectly related to or affects those functions.”
In conclusion, it should be remembered that legally landlords and agents can only enforce a contract. They cannot manage behaviour (ref: House of Commons briefing note SN/SP 264, paragraph 1.1). In most circumstances, the only remedy available to landlords confronted with cases of serious ASB in one of their properties will be to seek vacant possession, and in many instances they will need to serve a Section 21 notice rather than a Section 8 notice. The former is simpler and cheaper and repossession (at present) is more certain. In terms of low level ASB problems, the landlord needs to have a robust process in place to immediately correct tenant behaviour to avoid escalation and costly possession.
[Giles Inman, Private Sector Landlord, East Midlands Edition, January 2017, pp. 14-15]