City West Housing Trust v Massey; Manchester & District Housing Association v Roberts [2016] EWCA Civ 704
The Court of Appeal has considered two “cannabis-farm” cases in order to revisit whether or not a possession order made in the wake of a serious criminal offence at a property should be outright or whether its execution should be suspended on conditions (an “SPO”) under the court’s “extended discretion”.
(Although both cases concerned assured tenancies under s.9 Housing Act 1988, the relevant law is identical for secure tenancies under s.85 Housing Act 1985.)
Background
The two cases are strikingly similar. Both involved substantial cannabis farms at social rented properties in Greater Manchester, and consequent criminal convictions. In both possession trials, the battleground was solely whether the inevitable order should be suspended or outright, both landlords seeking outright possession.
The court found that each tenant lied on oath at trial. In
Massey, the tenant lied “without excuse” about knowing about her partner’s cannabis farm in her house, showed no willingness to co-operate with her landlord, and showed no remorse. However, because she was prepared to accede to eleventh hour conditions (compliance with tenancy; partner to stay away from the property overnight; the landlord’s right to inspect the property at short notice) the district judge suspended the possession order.
Similarly, although much about the evidence of Mr Roberts – who claimed the cannabis farm was imposed on him by a gang – was heavily doubted at trial, the judge nonetheless made a possession order suspended on similar terms of inspection and tenancy compliance.
Both landlords appealed to circuit judges, and this is where the paths of each case diverged: in
Roberts, the circuit judge (HHJ Armitage QC) overturned the District Judge’s order as perverse, replacing the SPO with an outright order. He found the District Judge had been wrong to have inferred any sound basis for cogent evidence of reform from Roberts’s dishonest evidence, further ruling that reasons for belief in a tenant’s reform should not rest on positive and expensive obligations on a landlord (e.g. inspection).
Meanwhile, in a neighbouring courtroom in Manchester’s County Court, HHJ Platts agreed with the District Judge’s SPO order in
Massey, ruling that the District Judge had not overstepped the bounds of his discretion, despite indicating that a different judge – himself included – may well have made an outright order at trial.
Both City West and Mr Roberts were given permission to appeal by the Court of Appeal, to clarify two main issues:
- how should district judges exercise their discretion when a tenant’s evidence has been dishonest?
and
- can prospects of reform be “cogent” if based on promised compliance with conditions “external” to the tenant, for example, additional property inspections by the landlord or police?
Outcome
The Court of Appeal decided that both District Judges had been entitled to make the orders they originally made so that Mr Roberts gets his suspended order back, while Ms Massey’s order continues to be suspended.
In doing so, the Court of Appeal gave some reticent guidance, acknowledging that this was not as much guidance as either landlord in this case had asked for, nor would any future judge’s failure to follow it be an automatic basis for appeal.
In giving the leading judgment, Lady Justice Arden revisited the Court of Appeal’s last major examination of this issue in
Sandwell MBC v Hensley [2008] HLR 22, where an SPO made against a tenant convicted of running a cannabis farm at his property was converted into an outright order. LJ Gage ruled:
“
unless there was cogent evidence providing a real hope that the defendant had mended his ways, the [landlord] was in all the circumstances entitled to an outright order.”
Acknowledging a difference between
Hensley (where the tenant himself was the cannabis farmer) and the two present cases (where the drug-grower was a third party), Arden LJ here ruled that:
“
…the fact that the tenant was not the person who cultivated the cannabis is likely to mean that the tenant relies on his or her lack of knowledge of, or control over, the cultivation”
As for future cases, Arden LJ offered some cautious but not cast-iron guidelines:
- any case involving the consideration of an SPO depends to some extent on its own circumstances, as well as the law;
- to be “cogent”, a tenant’s evidence of reform prospects must be not just credible, but persuasive (of the sound basis for reform);
- there is no principle that persuasive evidence of future compliance must come from the tenant themselves; the tenant conceding to an external condition such as additional inspection by the landlord would be acceptable, although, any “external” condition depends on the limited resources of the landlord;
- dishonesty in a tenant’s evidence is not an automatic bar to the making of an SPO: “Even a tenant who genuinely wants to comply may give false evidence… because they think the truth is unlikely to be plausible or acceptable.”
- however, a tenant who lies in their evidence runs the risk that the court will not accept assurances from them for the future;
- a “check-list” of factors is not appropriate, but the court may consider the following factors in any individual case:
- co-operation with landlord;
- honesty and full disclosure of any previous bad behaviour;
- genuine remorse;
- early acceptance of culpability;
- extent and duration of bad behaviour.
Case summarised by Peter Marcus,
barrister,
Zenith Chambers
For the full judgment
click here
£20,000 fine for Hackney Landlord
Hackney Council reports that a joint investigation by Council investigators and police officers led to them finding that a landlord had illegally converted a two storey terraced house comprising two storeys and an attic and comprising just seven rooms into a property occupied by 28 tenants. The tenants had to share one kitchen and one bathroom.
The landlord did not have the requisite HMO licence and there were no fire alarms. He pleaded guilty to managing an unlicensed house of multiple occupation at Thames Magistrates Court and was fined £20.000 and ordered to pay costs of £1845. For the full report click here.
Illegal Sub-letter Sentenced
The London Borough of Barking & Dagenham reports investigations showed that a former council tenant who purchased a property at a substantially discounted price and then illegally sublet the one bedroom flat, has been sentenced to 20 months’ imprisonment.
The former tenant had been living with her husband and children at a different property owned by her husband and had concealed this fact from the Council when she had applied to purchase the flat under the Right to Buy scheme.
The Council is now taking steps to take confiscation proceedings in relation to the discount and the illegal rental income under The Proceeds of Crime Act 2002. For the full report click here.