Court of Appeal shows that consistent breaches of any tenancy agreement will not be tolerated

Ref: Case ref. Barking and Dagenham Borough of London v Bakare [2012] All ER (D) 27 (May).

The case referenced above saw the defendant consistently fail to remedy serious breaches of their tenancy agreement despite numerous warnings. As a result, the Court of Appeal has refused a last ditched attempt to reverse the outright possession order and will consequently result in the loss of their home.

The case sets a precedent for future similar instances, in that the Court of Appeal has shown it will not continue to be lenient with applicants who show no likelihood of remedying the issues claimed against them.

In this particular case, the defendant, Ms Bakare, was a tenant with the Barking and Dagenham London Borough Council and lived in block of flats with her two adult sons. Possession proceedings were first pursued against the defendant in 2005 on grounds of rent arrears. A suspended possession order was granted at that stage, meaning that Ms Bakare was entitled to stay in the property as long as she kept to the arrears repayment schedule.

Despite failing to stick to her rent payments over the next four years, all applications to obtain a warrant of possession by the council were suspended on promises that she would pay in the future.

The case grew in complexity in 2010 when a number of allegations were made against her two sons of anti-social behaviour, including drug use and the possession of weapons. The council once again applied for outright possession on grounds of rent arrears as well as the anti-social behaviour and, in addition, applied for ASBOs against both sons.

An ASBO was granted against one of the sons at the first hearing in Romford County Court, the terms preventing him from associating with certain people or loitering in the communal areas of his block of flats. Decisions over the rent arrears were referred to the second hearing.

In the second hearing in 2011, the anti-social behaviour aspect took hold. Ms Bakare was on top of her rent arrears payments, but the behaviour of her sons had worsened despite the ASBO. HHJ Platt at Romford County Court deemed this enough to finally grant a possession order.

Ms Bakare argued that she had taken steps to exclude her sons from the property, but the Judge exercised his discretion in concluding that the behaviour had continued and worsened despite the judge’s findings at the first hearing and the application of an ASBO. He could only assume, therefore, that the behaviour would continue to escalate and a suspended possession order would not be suitable or effective.

A final appeal was made (see case reference) to the Court of Appeal and rejection there ended proceedings. The Court of Appeal held that it was within HHJ Platt’s discretion to find that the anti-social behaviour would continue if a suspended order were made. Ms Bakare and her son had been given sufficient warning at the first hearing and had failed to adequately address the serious breaches of the tenancy agreement. The Court of Appeal had no grounds to interfere with the first instance decision.

The implications are significant to housing associations. The courts have shown that they will not suffer defendants that repeatedly fail to address repeated warnings and so the position of housing providers is very strong when bringing either possession proceedings or injunction applications to address anti-social behaviour. That is if they can show evidence that repeated warnings have been given but ignored.

That evidence is crucial, and Housing Associations and Councils would do well to keep stringent records and follow strict procedures when dealing with cases like that of Ms Bakare.

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