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Nightmare on Elm Street

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New legislation is aimed at helping residential landlords to recover possession

Consider the following scenario.  You are a landlord of 21 Elm Street, a terraced property on a quiet residential street.  Your tenant is 3 months into his 12 month tenancy.  The rent is being paid via housing benefit which comes to you directly. On the face of it, everything seems fine.

But in the past few weeks, there have been complaints about drug use at the property. Neighbours have complained. Your agents have told you that something needs to be done. And matters have now come to a head following a police raid and the arrest of the tenant.

The tenant is now in custody, much to the relief of the neighbours. But you are left with a tenancy that has another 9 months to run before the fixed term expires. And no knowledge as to when, or if, the tenant will return.

You speak to your solicitor about terminating the tenancy immediately.

To your surprise, you are told that the arrest and conviction of the tenant does not automatically entitle you to recover possession of the property.  The solicitor uses the worrying words that “the Court has a discretion whether to allow you possession of the property or not”.

The solicitor goes on to explain that the word “discretion” means that you are at the mercy of the judge on the day. He may allow you possession. He may not. He can take a view on whether it is appropriate or not.

This advice does not fill you with great joy. The tenant has caused a nuisance to the neighbours, he has been arrested for a serious criminal offence, and he is clearly not going to turn into a saint overnight. How can it be fair for a landlord to have to beg the Court for possession of his own property in these circumstances?

The factual scenario above is not unheard of and has caused many landlords to conclude that the law is an ass.

Those landlords may now be feeling rather better about the state of the law with the introduction of the Anti-social Behaviour, Crime and Policing Act 2014 which comes into force on 20 October 2014.

In summary, the Act provides that the Court must grant possession where a tenant is convicted of a serious offence in or near the tenanted property or which affects the landlord or the landlord’s agents.

What this means in practice is that, in the case of the nightmare tenant referred to above, the landlord would know with confidence and certainty that rather than having to desperately plead with the judge to be allowed to recover possession of his property, the landlord would be able to say to the judge: “with respect Sir, the new legislation requires you to grant me a possession order”.

The judge is now obliged to grant a possession order rather than having a discretion to decide what is appropriate in the circumstances.

Some would say that this Act simply creates another can of worms which lawyers will open with great delight. But for many landlords, it is a positive development and one that will make it ever so slightly easier to deal with nuisance tenants. 

If you have any queries raised in this article or in relation to any other landlord and tenant matters, please contact Andrew Turner on 01242 574244 or by email aet@hughes-paddison.co.uk

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