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Ground 14A and Domestic Violence

By D

Metropolitan Housing Trust v Hadjazi [2010] EWCA Civ 750 (01 July 2010)

An interesting, although sad, case which raises issues of construction of Ground 14A of Schedule II of the Housing Act 1988.

H had an assured tenancy of the property from a property in Thornton Heath from MHT which began in 2003. He occupied the property with his wife and 4 children. From 2000 there had been problems in the relationship which had seen violent threats and behaviour by H towards his wife and children including incidents in which he had apparently attempted to strangle and kill his wife. In 2006 they separated and he left the property, his wife and children then residing there alone. The violent behaviour continued and H breached an injunction resulting in a suspended sentence. This did not stop his behaviour. In November 2007 the wife and children were moved to an undisclosed location and in December H began occupying the property again alone.

In January 2008 MHT began possession proceedings against H under grounds 12, 14 and 14A of Schedule II of the Housing Act 1988. The matter ultimately came before HHJ Ellis sitting in the Croydon County Court and, after a three day trial he gave judgement dated 6 October 2009. He dismissed the ground 12 claim (breach of a clause of the tenancy other than one relating to rent) on the basis that the clauses which MHT alleged had been breached (all relating to nuisance and harassment) were directed to neighbours and not to other occupiers of the same property. He also dismissed the claim under ground 14 for broadly similar reasons. Following the principle against doubtful penalisation HHJ Ellis adopted a tough stance on the ground 14A point and held that it only applied to violence or threats which were proven during the period when H and his wife were living together as a couple. He held that even if he were wrong on this point he would stil refuse an order for possession on the grounds of reasonableness as H was ill and the effect of the possession order would be to leave him homeless which would be ‘devastating’.

On appeal the Court upheld HHJ Ellis’ rulings on grounds 12 and 14 but overturned his ruling on ground 14A. The Court dismissed an argument that ground 14A was discriminatory against those who lived as a couple without being married or in a civil partnership because the ground did not apply to couples who no longer lived together. Most importantly the interpretation of ground 14A used by HHJ Ellis did not find favour.

I agree that the ground looks to the past, first to the facts of occupation and living together and then to identify the past event that triggers the operation of the ground i.e. the victim of the violence leaving the property because of the violence. The ground also looks to the future to see if the person who has left is unlikely to return. The essential point is that the use of the past tense does not expressly or impliedly require the parties to the relationship to be living together as a couple at the date of the causative violence or at the date of the relevant triggering event. The references to “couple” (and to “partner”) do not impose such a requirement: they identify one of two people in a relevant relationship.

The Court held that the findings of fact made by the judge fitted ground 14A and was unimpressed by the suggestion made by the judge that the timing of Mrs H’s departure was relevant. Essentially once the finding of fact had been made that it was H’s conduct that had caused Mrs H to leave the premises then ground 14A was made out.

As the decision on reasonableness was made in the light of an erroneous construction of ground 14A the Court decided to remit the matter back to a different circuit judge for a reconsideration of whether it would be reasonable to make an order for possession.

D is a solicitor specialising in landlord and tenant matters with a London firm.


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