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Injunctions in practice: Victoria Power writes for 24 Housing

Fri 03 Oct 2014

This article was first published in 24dash.com on 1st October 2014.

Victoria Power - Winckworth Sherwood

Victoria Power, a solicitor with the housing management team at Winckworth Sherwood, explains the power of injunctions and the new regulations to come into force this year. 

It may be surprising to hear just how many of our clients are not aware of the full extent of their ability to get injunctions against their tenants and against those who directly affect their housing management functions.  Landlords.... know your rights! 

As a foreword, the first thing to consider when thinking about applying for an injunction is the mental capacity of the individual, as it is not possible to apply for an injunction against an individual who lacks mental capacity.  Under the Mental Capacity Act 2005 “a person must be assumed to have capacity unless it is established that he lacks capacity”.  Clear guidance, this is not, but go with it.

The most common and most widely used injunction is the Anti-Social Behaviour Injunction, or ASBI as it is more affectionately known.  An ASBI enables Registered Providers and Local Authorities (and other bodies) to prevent a tenant or individual affecting their housing management functions from engaging in disruptive, nuisance or violent behaviour; and to offer affected neighbours and residents some comfort and protection. 

Often, when an individual’s behaviour is so violent or threatening or persistent in its nature we would include in an application the attachment of a power of arrest and/or an exclusion zone, enhancing the victim’s security.  As soon as the injunction is breached or the exclusion zone entered, the police have the power to arrest the individual and take it from us; the Courts do not take kindly to people disregarding their orders.  ASBIs can also be a great tool in protecting residents whilst possession proceedings are being commenced. 

An ASBI for the most serious anti-social behaviour should be applied for as a matter of urgency; the Court will question any delay and will be less likely to give you the order you are seeking.  We have, for example, been instructed to apply for an injunction against a knife-wielding tenant six months after the incident occurred and it wasn’t well received by the Court.

But just as you were getting comfortable with the ASBI, the new Anti-Social Behaviour; Crime and Policing Act 2014 comes into force.  Although the implementation of the Act has been slightly delayed (originally set for October 2014), this new Act allows Registered Providers and Local Authorities to get injunctions against those as young as 10 (just like the now extinct ASBO) and, for the first time, you will be able to include mandatory requirements in the injunction – for example, attendance at an alcohol-awareness course or removal of rubbish.  Courts can take into consideration behaviour six months prior to the commencement of this part of the Act, so it’s worth bearing your new powers in mind now. 

Coming a close second in popularity to the ASBI, has to be the application for a gas safety injunction.  Landlords are statutorily obliged to carry out gas servicing checks annually and it’s overwhelming how many tenants think it’s their “right” to not allow contractors in.  It’s not surprising given what some tenants might be hiding – anything from cannabis factories to sub-tenants and stolen goods!  

Getting a gas safety injunction is usually very straightforward and given the potential health and safety consequences of a faulty gas appliance, the Court should award you your injunction without much of a fuss.  With new case law, we can also ensure that the gas safety injunction remains in place for the duration of the tenancy agreement, saving landlords the annual costs of getting an injunction against repeat offenders.  Just make sure that you turn up when you have agreed to... if you don’t attend you can face a hefty wasted costs order against you and the prospect of re-applying for the injunction, which now carries a revised court fee of £280. 

There are, of course, other injunctions available to landlords; for gaining access to the property to carry out inspections or repairs, and for preventing a breach of tenancy.  Both of these are really useful to ensure that the property is being well looked after and the tenant is complying with all the terms of their tenancy agreement, should possession proceedings not be required or wanted at that stage. 

Landlords need to keep a good record of any attempts they have made to arrange access with the tenant or leaseholder.  Simply sending one letter to arrange access will not suffice, so make sure several attempts have been made to improve your chances of getting that injunction. 

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