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Can I be charged for boarding up the property due to tenants ASB?

Boarded upHere is a question for the blog clinic from Colin (not his real name) who is a landlord:

I am the unfortunate landlord of some ‘tenants from hell’. I have received numerous complaints about their behaviour, which has ranged from excessive noise to criminal damage. There are also suspicions of drug-taking on the premises.

The council recommended that I serve notice on them, which I did. The tenants have responded by saying that they will not leave, quoting protection from eviction and claiming victimization.

Finally a couple of weeks ago the police attended an incident and arrested one of the tenants but they were released with only a caution. The local anti-social behaviour unit have now told me that if the tenants do not leave then the property will be boarded up by the police – at my expense!

I may be wrong but this doesn’t sound right to me, especially as I have already applied for a (very expensive) court order. Can they actually enforce this or is it just hot air?

Police powers are not an area I know much about, so I put this question up to see what others have to say about it.

If they do have the power to board up the property though (and they may have), then I don’t think they can actually send you a bill and require you to pay for this work while the property is let to someone else – if anyone is liable for the cost it will be the tenants.

However you will ultimately be out of pocket as when the property reverts to you, you will have to remove the boarding before you can re-let to another tenant.

You will of course be able to deduct the cost from the tenants deposit, but I suspect that this will just be one of many items and that the deposit will not cover them all. (You may want to see what your insurances covers though).

A letter to the Council

I suggest you write back to the Council saying that you are bringing proceedings for possession but that you are unable to do anything else to hasten the tenants departure as this will put you in breach of the Protection from Eviction Act 1977.

You could then add maybe, that the Protection from Eviction Act makes it a criminal act to deprive any residential occupier of  their occupation of the premises and that you trust they are not suggesting that you should put yourself in breach of the law by doing this.  As if so you will wish to make a formal complaint about it.

Go on to say that you are unaware of any legal power to charge you for boarding up the property where tenants exhibit anti social behaviour and can they please let you know their precise legal authority for saying this so you can take legal advice.

Breach of natural justice?

My understanding of the law is that landlords cannot be held legally liable for the acts of their tenants – none of us are liable for things that are done by someone else (save possibly our children and employees acting in the course of their employment).

I know that there is a move towards making landlords liable for their tenants though, and it looks as if some local authorities are taking this view.

Hopefully at some stage there will be a legal challenge to this – perhaps from the landlords associations.

For example I would have thought that there is an argument that any law making someone legally liable for the acts of another human being over whom they have no control, would be in breach of natural justice or maybe ultra vires.

Although it does not, on a quick glance, seem to be strictly in breach of the Human Rights Act.

Buffer

Important note. If you are reading an old post, remember that the law may have changed since it was written.




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6 Responses to Can I be charged for boarding up the property due to tenants ASB?

  1. Natural justice it isn’t, however, the Police can do this.

    Basically the police can apply to the Magistrates Court to close the house for up to 3 months initially. This is known as a ‘Crack House Closure’

    Rules relating to ending your tenancy under the Housing Act etc do not apply.

    The order is made on the house.

    It can be used as a civil remedy, instigated by the Police where they have evidence to support the house being used in association with Class A drugs. They have to provide evidence to support their claim, but as this is a civil matter, the burden of proof is lower- ie ‘on the balance of probabilities’ – Also hearsay evidence can be used.

    This link is to a PDF explaining this in detail from Guildhall Chambers >>> http://www.guildhallchambers.co.uk/uploads/docs/section9/CrackHouseClosuresHAS05.pdf

  2. Thanks Mark, that is most interesting.

    I note though that the order can only be made by the police, so if a landlord tries to turf his tenants out in anticipation of this happening, presumably he will still be in breach of the Protection from Eviction Act.

    This just goes to show how careful you need to be in your choice of tenants.

  3. In this sorry state of affairs what jumps out at me is the information that it is the council’s anti-social behaviour team who have mentioned charging the landlord, not the police.

    Far be it from me to diss one of my council colleagues but that is bullshit. Sounds like a bit of scaremongering to me and not the first time I have heard of advice like that being given out in an attempt to find a quick paper-less solution.

    Mark you are right about crack house closures but they do what they say on the tin and Colin merely mentions “suspicions of drug-taking”, hardly a crack house and certainly not enough to allow police to obtain a court order to act on.

    I agree with you too Tessa, what the ASB team are suggesting is a cockeyed view of law, that one person be responsible for the actions of another. I only ever argue that a landlord is responsible for the actions of a tenant if they in some way support or encourage said behaviour.

    It sounds to me as if Colin has busted a gut to help sort things out.

    More commonly I get the situation where cops doing a raid kick the door in but refuse to pay to have it fixed, leaving the landlord with the section 11 duty on repair and the tenant arguing that it was nothing to do with them but they want their door fixed. always difficult ones to negotiate.

    My suggestion Colin? Ask the ASB team to explain, in writing, what legal machinery would allow them to pass this cost on.

  4. This issue is similar to the question on 20 May “Can I do anything about my anti-social tenants?”, and my comments are the same. Tessa’s advice on how to proceed by asking the relevant council department to explain in writing the legal basis of their suggested powers is spot on, but also send a copy of all the correspondence to the Council’s legal department, whom I suspect do not know what is being claimed.
    These claims are possibly made by a department that does not have any knowledge of the difference between a body having a power and the factual basis of being able to sustain a claim. If it was possible to close every house where there was a suspicion of drug use or dealing or of noise those tenants (or owners) would be continually uprooted. Closure Orders are at the highest end of the anti-social ranking.

    As regards the Housing Act; the order does not end the tenancy, it merely suspends it, so if the landlord has not obtained a possession order then the occupiers can return at the end of the period. As far as I know there has not been any case law on the issue of the tenancies status since the legislation was enacted.

  5. Thanks Colin, thats what I thought. The police action of closure etc is against the property as let to the tenants.

    For the landlord to be safe in repossessing he will need to get a court order for possession.

    Unless I suppose the circumstances are such that he is entitled to assume that the tenants have made an implied offer to surrender (which I talk about here http://www.landlordlawblog.co.uk/2010/08/11/landlord-and-tenant-law-implied-surrender-explained/).

    I suspect a closure order which has been made by the police would not be sufficient though to bring this into play.

    However tenants in these circumstances are perhaps unlikley to resort to the civil courts for redress and even if they do, no doubt the landlord will have a hefty damages claim to offset any compensation for unlawful eviction the tenants may want to make against the landlord.

    I think it unlikely that a Judge would award them an injunction letting them back in if they have been carrying out illegal activities there. What do you think?

  6. We are in an uncharted area of law as there have been very few closure orders made. There are still unanswered questions as to liablity for rent during the period of closure. If the person causing the drug/anti social behaviour was not the sole legal tenant but perhaps a household member but has since a closure ceased to be a part of the household then the joint tenants or the sole tenant if they were not the perpetrator may wish to return home. Innocent parties may be adversely affected by the closure.
    Orders are made against any person occupying so it can be used against owners occupiers.

    Interesting report of a case from 2006 where an order was successfully appealed. So it is not automatic.
    http://www.hexhamcourant.co.uk/legal-ruling-sees-crack-house-order-thrown-out-1.396454?referrerPath=home/2.3307




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About the post author:

Tessa Shepperson

Tessa is a lawyer specialising in residential landlord and tenant law. She runs the Landlord Law website (now in its 12th year) and is a director of Easy Law Training Ltd and Your Law Store. Tessa also sits on the Property Redress Scheme Council. When not working she enjoys reading, cooking and messing around on the computer. You can also find her on Google



The Landlord Law Blog from Tessa Shepperson

Tessa is an English lawyer specialising in residential landlord and tenant law.


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