Hoarders/Uncooperative Tenants – Some Solutions

There has always been a fine balancing exercise for social landlords, in complying with their duties to their tenants and enforcing tenants’ obligations. Never more so than in the case of those unwilling to engage with their landlord, where the need to do so, is entirely in the tenant’s best interests .

By way of an illustration, what to do in the case of gas safety checks, if access is being denied to the landlord ?

The obvious remedy is an access injunction, invariably granted on first application, provided relevant evidence is produced to the court, highlighting efforts made to gain voluntary access and the potential risks to the tenant, of a failure to inspect.

However, the situation is more complicated, if the tenant has a mental disorder which affects the ability to comprehend the risks posed by the failure to engage and cooperate with the landlord and where the courts are unlikely to grant injunctive relief. Similar issues arise in the case of ‘hoarders’ ; conduct is typically characterised by domestic squalor, social withdrawal, apathy and compulsive hoarding of rubbish. Such tenants tend to be elderly with a long term attachment to their home environment and hence are unwilling to have their obsessive compulsive and self destructive behaviour, interfered with.

The courts may be unwilling to grant injunctive relief , in respect of individuals lacking capacity in relation to the litigation issues raised against them.

There is of course, always the option of pursuing the remedy of outright possession proceedings. However, courts may view this as a draconian measure. Landlords are faced with a number of obstacles to overcome, not least (in the event that it is raised in defence, by the tenant) Article 8 of the Human Rights Act 1998 which provides that

(1) Everyone has the right to respect for his private and family life, his home and correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Section 6(1) of the Human Rights Act, makes it unlawful for a public authority (with registered social landlords categorised as ‘hybrid authorities’, as clarified in London & Quadrant Housing Trust v R [2009] EWCA ) to act in a way which is incompatible with a Convention right.

Whilst in due course, the landlord should in extreme cases, be able to persuade the court that insofar as Article 8 has been engaged, possession is a proportionate step to achieve a legitimate aim, nevertheless there are significant costs implications for the landlord in this litigation process.

An alternative avenue, is that of the Court of Protection. The Court of Protection has extensive decisionmaking powers on behalf of vulnerable individuals lacking capacity, both as to their property and their affairs generally, using the ‘best interests’ test as defined by section 4 of the Mental Capacity Act 2005. Essentially, the remedy sought would involve the landlord applying to the Court of Protection for the necessary access to the subject property, to enable inspection and/or works to be carried out, to use reasonable and proportionate force if necessary to effect removal of the tenant pending the completion of works and to provide that the tenant reside at a designated alternative accommodation for the duration (albeit that the tenant would not be compelled to remain there). In making such an application, a well prepared case and careful liaison with the social services department, is absolutely vital. Evidence should be collated in advance of a court appearance, to demonstrate that all orders sought, are in the best interests of the tenant. In those circumstances, a substantive Order should be obtained at first instance, at minimal cost and delay to the parties.

Shahnaz Farahi
shahnaz.farahi@rlb-law.com
© RadcliffesLeBrasseur
August 2011


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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