Obtaining possession due to nuisance by the tenant

Due to the extended notice periods required for possession as a result of the ongoing coronavirus pandemic, many landlords are seeking to evict tenants on alternative grounds, such as nuisance, to enable them to obtain possession of their properties sooner.

As a landlord, evicting a tenant can be complex. However, this is particularly so where you are seeking possession on the basis that the tenant or anyone visiting or staying with the tenant is causing a nuisance.

Examples of “nuisance behaviour” include:

• Noise at high levels or unreasonable hours; 
• Property damage;
• Smoking in the property; and
• Rubbish dumping.

Landlords should first serve their tenants with a Section 8 Notice, the prescribed form can be downloaded from https://www.gov.uk/guidance/assured-tenancy-forms#form-3 . This informs the tenant, that you wish them to leave the property with the reasons why. If the tenant does not leave at the end of the notice period a landlord will need to obtain a court order to evict them from the property.

Obtaining possession due to nuisance, is known as a ‘discretionary ground’. Put simply this means that even if the court can be persuaded that the tenant is causing a nuisance, a judge can still refuse to award possession if they consider it is not reasonable to make a possession order. This differs from a ‘mandatory ground’ where a judge must award possession if the ground is met.

Given that nuisance is a discretionary ground, it is important for landlords to compile as much evidence as possible to maximise their chances of gaining possession.

You should therefore:

• Keep a detailed schedule of events setting out the date and time of each incident with a brief description of what happened.

• Keep a record of the action you have taken to address the nuisance. Stating what action, if any, was taken is important, as it demonstrates that as a landlord you have behaved reasonably before commencing court proceedings. Examples of actions you have taken might include an email or text sent to the tenant reminding them that their behaviour is impacting other residents or having a meeting with the tenant to remind them of their obligations under their tenancy agreement.

• Take photographs of any property damage, e.g. broken windows, or dumping rubbish incorrectly. If the matter proceeded to a court hearing, any relevant pictures should be included in a witness statement. It is important that you identify who took the pictures (e.g. a neighbour) and the date and time if possible.

• If the tenant’s neighbours have been impacted by any nuisance behaviour, ask them to also keep a schedule of events. This can also form the basis of any witness statement by the neighbours in support of your claim.

• Correspond with the tenant in writing – e.g. emails, letters, and text messages.

As the human memory is fallible, any oral conversations you had with the tenant regarding their behaviour may not be easily recalled several months later at a court hearing. Equally your tenant may have a different recollection of the conversation. Therefore, correspondence with the tenant in writing, or an email confirming the contents of the meeting with the tenant, not only serves to refresh your memory on the incidents, but also allows you to refer to such documents in your witness statement.

At Bell Lax we have significant expertise in residential possession claims and are continually monitoring the COVID-19 situation as it evolves to provide our clients with the most up-to-date advice. We are able to offer fixed fees for stages of the proceedings. This includes drafting and serving a Section 8 Notice, Issuing a Claim for Possession, and Instructing Bailiffs to Evict Tenants.

To discuss possession proceedings further, please contact our Commercial Law team on 0121 355 0011 and one of our team of expert lawyers will be pleased to assist and advise you.