A bit too widely cast…

You may recall the discussion that took place on this blog of Wandsworth’s secure tenancy terms, introduced in 2009, that sought to introduce a list of things that the tenant, “lodgers, friends, relatives, visitors and any other person living in the property are not allowed to do whilst in the London Borough of Wandsworth”, including causing a nuisance to others, causing damage to property etc. etc. A full list of the terms is at the end of this post.

Our discussion was in the content of Wandsworth seeking to use this clause against the mother of an accused rioter for a possession claim under Ground 1 -breach of tenancy conditions. Wandsworth backed away from that case, but the view of some, including me, at the time, was that the terms were effectively a personal obligation, not a term of the tenancy.

We have just heard about a County Court judgment in a case, LB Wandsworth v Maggott, in Wandsworth County Court, where exactly that was held. The following are just brief notes – more detail when we have it.

Mr M was Wandsworth secure tenant, having succeeded his mother, and had lived in the property for some 30 years. There were no problems until 2010/11 when Mr M became subject to racist and other abuse. Mr M thought he knew where the originators of this abuse lived, in a flat on another estate, and, for a period of about 8 months, went to this other estate and flat, marking unpleasant graffiti on the flat door and common parts.

Mr M was arrested, pleaded guilty and received a prison sentence. About 3 months after he was released. Wandsworth brought possession proceedings on grounds 1 and 2. The ground 1 claim was on the basis of clause 31 of the post 2009 tenancy agreement, which states:

“This is a list of things that you, your lodgers, friends, relatives, visitors and any other person living in the property are not allowed to do whilst in the London Borough of Wandsworth or the area which is local to the property:
. breach the tenancy conditions
. do anything which causes or is likely to cause a nuisance to anyone living in the borough of Wandsworth and/or the local area
. do anything which interferes with the peace, comfort or convenience of other people living in the borough of Wandsworth and/or the local area
. cause damage to property belonging to other people or council property in the borough of Wandsworth and/or the local area
. harass anyone in the borough of Wandsworth and/or the local area because of his or her race, colour, nationality, culture, sexuality, gender, age,
marital status, religion or disability
. use the property for any criminal, immoral or illegal purpose
. threaten or harass or use violence towards anyone in the borough of Wandsworth and/or the local area
. threaten or harass or use violence towards council employees, managing agents or contractors
. use or threaten violence towards anyone living in the property
Any breach of the tenancy conditions by anyone living in or visiting the property, or where there is a joint tenancy, by one of the joint tenants, will be treated as a breach by the tenant. If you are evicted it is likely you will be considered to have made yourself ‘intentionally homeless’ and consequently not be entitled to rehousing by the council.”

At the hearing of the claim, the District Judge held:
(a) cl.31, insofar as it applied to the entire borough, was not an “obligation of the tenant”, applying RMR Housing v Combs [1951] 1 K.B. 486
(b) insofar as it related to anything which was “local” to his flat then Wandsworth had failed to prove, as a matter of fact, that his ASB was in the area
(c) in any event, it too was not an obligation of the tenancy
(d) if he was wrong about that, it wasn’t reasonable to make an order for possession.

The possession claim was dismissed.

Now this is just a County Court first instance decision, but the decision follows the approach that some of us thought likely on such a broad tenancy term. It will be interesting to see if there is an appeal, because that would lead to a precedent hearing affecting the widely drawn tenancy conditions of a number of Councils. If upheld, the significance would be that those clauses couldn’t be enforced by possession proceedings for breach of tenancy.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in ASB, Housing law - All, Possession, secure-tenancy.

6 Comments

  1. I would’ve thought this case was crying out for an injunction with an appropriate exclusion zone. As the nuisance was carried out well away from where Mr M lived I doubt the judge would’ve had too much trouble in banning him from the area.

    • It appears he was prosecuted and pleaded guilty. No suggestion of re-occurence that I know of. It was Wandsworth wanting to exercise clause 31, which was the one they threatened to use on households with a member involved in the riots. To that extent, this was about ‘policy’ rather than a reasonable and practical solution.

  2. Pingback: Landlord Law Blog roundup from 18 February

  3. on the basis of the information supplied, one practical point which appears not to be mentioned.
    Not only was it not a clause of the tenancy it wasn’t even an obligation of any sort [owed to LBW]. subject to the blue pencil rule striking out the words “in the borough of wandsworth”.
    Maggot’s tenancy was some 30 years old. The council will havve purported to make the change in 2009 by exercising the provisions of s102 of the HA 1985. T
    s 102 provides (1)The terms of a secure tenancy may be varied ….
    As this is not a term of the tenancy it could not be imposed except by individual consent.
    The only people who will have this as a contractual obligation will be those who have signed new tenancy agreements since they started to impose this in 2009.
    it may not be known but..
    LBW changed their tenancy terms in about 2000,
    They didn’t consult about 1 minor but very important change.
    That change was removing a contractual obligation to remedy damp.. As far as i am aware they have never yet done so. So tenancies predating 2000 should have a remedy for damp whether or not caused by disrepair eg condensation.

    • Why is it not a term of the tenancy? Obligation of the tenancy, sure, I understand that, but surely a term is broader than an obligation?

  4. Term is indeed a broader word. It is broader than obligation. An example would be “ a notice to quit may be validly served by delivering the same to the property demised” That is a term of the tenancy but not an obligation of the tenancy.
    However we are talking about the term “….you .. are not allowed to.. do anything which interferes with the peace, comfort or convenience of other people living in the borough of Wandsworth…”
    That is an obligation. But, it is not an obligation of the tenancy. It may be contained in the document that is the Tenancy Agreement . In the same way it may contained in the document that is the Tenancy Agreement but it is not a “term of the tenancy”.
    A clause that the tenant will not own any house (Croydon has a clause like that) is also not an obligation of the tenancy nor is it a term of the tenancy. It is completely extraneous to the Landlord and Tenant relationship, which at the end of the day is a form of tenure. Rent is in fact rent-service. In theory every tenant still owes fealty to his Landlord ( Megarry Law of Real Property 3rd edition) but only in respect of the land let.

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