Hajan v Brent LBC and Poplar HARCA v Kerr – How will the Social Housing Sector now be impacted when Seeking Possession?

In a recent judgment, on 23 October 2024, the Court of Appeal has given procedural guidance for social landlords seeking possession of properties due to antisocial behaviour of tenants. 

The two joined cases of Hajan v Brent LBC and Poplar HARCA v Kerr together address how to expedite possession whereby tenant misconduct may endanger community safety. The judgement is particularly helpful in the context of secure and assured tenancies for social landlords, confirming the circumstances they can rely on new grounds without the additional need to re-issue proceedings.

The decision considers the relationship between discretionary and mandatory grounds of possession both under the Housing Act 1985 and the Housing Act 1988, each with different approaches, dependent on whether the relevant factor is the conduct of the tenant or not. 

In this article, Darcey Black, Trainee Solicitor in the Housing & Regeneration (Litigation) Department, has considered the Judgement and summarised several key changes that the Social Housing Sector will need to be aware of.

Background of Cases

The facts in Hajan v Brent LBC and Poplar HARCA v Kerr involved both a secure tenant and an assured tenant, respectively, who were both convicted of serious offences arising from antisocial behaviour.

In the case of Brent LBC v Mr. Hajan, the respondent had a secure tenancy and was convicted for criminal damage at Brent Civic Centre. Similarly, in Poplar HARCA, possession proceedings were instituted against the tenant, Mrs. Kerr, after both falling into rent arrears and her son, who was living with her, then being convicted of the possession of an imitation firearm with intent to cause fear of violence.

Court's Decision and Reasoning

In both cases, the landlords had originally sought possession on discretionary grounds but subsequently wished to rely on mandatory grounds which became available after the original possession proceedings had been issued. The appeal questioned whether landlords could amend their claims to include new grounds. The judgement has provided clarity that landlords are able to do so to prevent otherwise facing the delays in timelines and additional cost implications if they were to issue new proceedings - a significant procedural advantage.

The Court of Appeal emphasised this ‘purposive approach,’ clarifying that Parliament intended to facilitate the eviction process to expedite relief for those impacted upon ASB being proven.

There are four primary purposes relevant to mandatory ASB possession grounds and specifically, sections 83ZA and 83A:

-          Tenants should be notified as to the mandatory ground for possession and the reasoning behind it.

-          Tenants should be informed of their rights concerning requests to review any decisions.

-          As a landlord, necessary steps within proceedings should be taken promptly upon any ASB convictions.

-          To help mitigate the possibility of tenants being subjected to proceedings based on ‘stale claims,’ the period/date in which possession proceedings may be begun should be specified to tenants upon any convictions.

Practical Implications

Landlords can amend existing possession claims to include mandatory ASB grounds instead of duplicating matters. While this can reduce costs and potentially, additional administrative burdens, it seems there is a greater pressure for landlords to conform with their obligations when providing notice to tenants- particularly given that it seems without such, the mandatory grounds may be voided.

The favouring of the mandatory ground and move away from the discretionary element likely will serve the interests of landlords through the creation of certainty as to pursuing possession that was not previously present regarding court discretion.

Furthermore, the Judgement further supports landlords in their ability to take swift action for possession there may be a risk to the community thus minimising any further potential for disruptions.

Social landlords should reflect on the guidance and take heed of the importance for the early identification and careful recording of ASB, as well as considering the benefit of applying for mandatory grounds for possession.

Overall, the decision of Hajan v Brent LBC and Poplar HARCA v Kerr is one constructive step towards restoring the balance between the right of tenants and the need for effective ASB remedies for landlords. Social landlords are now better placed to vary existing claims with fewer delays and, hopefully, less expense whilst ultimately ensuring that tenants and communities affected are better protected.