Summary

The High Court has allowed an appeal against a first instance decision to refuse a landlord’s application for possession of a residential flat under the Housing Act 1988 (the “Act”) on grounds that to order possession would be unreasonable.

The High Court held that the trial judge had erred in distinguishing between “relevant breaches” of the tenancy and other breaches which were committed because the tenant had held an honest belief that he was authorised to carry out those acts.

The matter has been remitted for retrial so all tenant breaches can be considered by the court when coming to a decision on whether to grant an order for possession.

Case facts

The landlord provides social housing to tenants. The tenant in question is a vulnerable individual with a mental disorder which means he is prone to misinterpreting others.

In breach of the terms of the tenancy, the tenant, amongst other things, carried out extensive works to the kitchen, had made alterations to the gas flue and installed a CCTV camera.

The landlord sought possession by relying on grounds 12 and 14 of schedule 2 of the Act.

Part of the tenant’s defence was that he had carried out those acts in breach of the tenancy under the misunderstanding that he had authority of the landlord to do so.

This was accepted by the judge who disregarded those breaches when coming to his decision to refuse the possession order on grounds that to do so would be unreasonable.

On appeal, the High Court held that in doing so, the trial judge failed to consider all of the tenant’s breaches in coming to his decision on reasonableness. The landlord was also criticised for failing to set out in its pleadings the specific tenancy provisions which had been breached.

Conclusion

This case serves to illustrate that a court should consider all tenant breaches which are properly made out on the evidence when coming to a decision on whether to grant an order for possession under the Act.

When considering the totality of those breaches, the court may decide it would be unreasonable in all the circumstances to make a possession order and decide on the form of any possession order to be made.

The case is also a reminder of the importance of a landlord clearly identifying the terms of the tenancy agreement which have been breached and adducing clear evidence in support of its claim.