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15/11/2021

They’re making a list, they’re checking it twice*

Sandwell Metropolitan Borough Council are proposing to amend their tenants’ secure tenancy agreements. Unfortunately, in their wisdom, they have decided to include a new tenancy condition as follows:

Sndwell tenancy condition

“You, people living with you and any visitors to your property must not use social media or any other form of communication to make false statements, abuse, threaten, harass or be derogatory towards Council employees, contractors, agents or councillors”

The explanatory document confirms the purpose of this condition, it is about:

Sandwell explanation

“Being clear that the Council will take action where social media is used to threaten, harass, abuse or make false statements towards Council employees, contractors, agents or councillors”.

Oh. Oh dear. Let’s start with the infelicitous drafting, which would appear to make it fine to make derogatory or ‘false’ statements about council employees or councillors, so long as the statements are not directed at (‘towards’) them.

And then, ‘false statements’? How is that to be established? Would the Council have to establish that the tenant/householder member/visitor made the statement knowing it was false (or at least being reckless as to whether it was false)? That is quite the evidential burden…

But there is the broader problem with the clause, which is its scope.

Just to be clear – in case that was needed –  no council employee, contractor, agent or indeed councillor should be threatened, harassed or abused. If that happens while they are doing a housing management role, there is already a perfectly good ground of possession – Housing Act 1985 Schedule 2, Ground 2(aa)

The tenant or a person residing in or visiting the dwelling-house— (…)

(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, and that is directly or indirectly related to or affects those functions, (…)

But Sandwell’s clause is not limited to conduct in relation to the council’s housing management function. It seeks to make a tenant liable – as a condition of tenancy – for, as an example, a visitor to their home making a ‘false statement’ about a councillor. (Quite how a social media statement by a visitor could be tied to the tenant’s tenancy is another evidential question, but hey ho).  This, I think, very clearly extends beyond anything specifically tenancy related.

Those of us who’ve been doing this a few years have seen this before – attempts to use tenancy conditions to regulate behaviour unconnected with the property or the tenancy. There was, in particular, Wandsworth LBC’s tenancy condition attempting to make a tenant liable for any anti social behaviour committed by the tenant, their household or their visitors anywhere in the borough. That came to grief, quite rightly, the first time Wandsworth attempted to use it by bringing a claim for breach of tenancy conditions under ground 1 Housing Act 1985. The condition was ‘not an obligation of the tenancy’.

Aside from Sandwell’s dreadful drafting, there is this broader point – tenancy conditions should relate to the tenancy, the property and the locality. Imposing a general obligation not to be rude to councillors (on social media or otherwise) is not a tenancy related condition. I would fully expect it to be unenforceable by possession proceedings as being a personal obligation, not an obligation of the tenancy.

There are various other remedies available where council officers or councillors are being abused, threatened or harassed outside of the context of a housing management function. These should be used where necessary. Just don’t make the ineffective gesture of putting it in a tenancy agreement. That is not the place for policing behaviour in general.

*Too soon?

 

 

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.

12 Comments

  1. Chris

    Document here / related?: https://www.sandwell.gov.uk/download/downloads/id/31754/preliminary_notice.doc

    They (and visitors) have to be sure to tax their car too!

    But also cultivating drugs, committing benefit fraud & domestic abuse..

    I have a suspicion some of these and other items may just be things that the council and it’s employees & tenants/neighbours have suffered and they are keen to reduce them in future (either through clarity of expectation or recourse). They shouldn’t have to try and police conduct like this (via a tenancy agreement) (because it should not happen)…but I suspect this is one of the only places they can commit such (common sense/polite society) rules/wishes in front of tenants a small minority of whom may read them and consequently may be less likely to do them. Whether they actually are enforceable is probably a secondary matter? (not saying this is good practice)

    Reply
    • Giles Peaker

      You are mixings things up – cultivating drugs, domestic abuse etc are crimes committed at the property. These are fairly standard clauses and most certainly grounds for possession. They are related to the tenancy.

      Other things… not so much. And appalling drafting doesn’t help. It is not only bad practice, it is ludicrous and laughable. A tenancy agreement is simply not the place for this.

      Reply
  2. Ron Platt

    Giles, your “a social media statement by a visitor” may be traceable through metadata and/or acquisition of the forensics from the social media Organisation, which could/would take a month of Sundays or longer.
    That clause reminds me of a Contract of Employment that required me to present myself at the place of Employment in a “professionally laundered shirt”. The was no mention, in the Contract of Employment, of compensation for the “professionally laundered” element. Did I?

    Reply
    • Giles Peaker

      No, Ron, it couldn’t be so traceable. Not without seizure of the phone and even then it would have to be an android phone with location history left turned on. And then, which is the whole point, it would be unenforceable against the tenant.

      Reply
  3. Timmy

    Yes, too soon. Santa Claus is not coming to Wednesbury.

    Reply
  4. Ian Narbeth

    Even without my signing a tenancy with my Council, they want to make me as a landlord responsible if my tenants don’t put their rubbish and recycling in the correct bins.

    Luckily the Council don’t want me to monitor their social media usage. It seems that someone needs to explain to Sandwell the “free” part of “living in a free country”.

    But seriously, if Councils can use these sort of clauses, can private landlords? Sadly we do not have a First Amendment but I would not dream of putting such a clause in my ASTs. If tenants make threats of harm or are defamatory, there are laws we can use.

    A Council tenant being “derogatory” may be perfectly justified as in: “The Council are a bunch of *&!*ing useless *%!*s – they haven’t fixed my heating for 3 weeks” if that statement is true.

    Reply
    • Giles Peaker

      Perhaps so, but I don’t follow how this might relate to the proposed tenancy agreement.

      Reply
      • John-Paul

        I’ve had a look at the blog and I’d guess the council are trying everything that they can think of, they must hate it. The most recent story is about this very tenancy agreement clause.

        Reply
        • Giles Peaker

          Yes, someone pointed him to my post on Twitter. But it is still irrelevant to the tenancy clause.

  5. Ben Reeve-Lewis

    Reminds me of my favourite daft tenancy agreement in my personal museum of curiosities containing a clause prohibiting tenants from “Hanging around causing problems” Clearly drafted there. Define “Problems”, Define ‘Hanging around’, Define where said ‘Hanging around’ would be deemed to have taken place?

    You have to wonder how influential the councillor(s) was over their trolling gripes. I can imagine a lot of broken eye contact among Sandwell’s legal team at the meeting.

    Reply
  6. grayee

    As a Housing officer and a Councillor I think this post is pretty spot on!

    Reply

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