Anti-social behaviour can come in many different forms including noise, threatening neighbours, damaging the property itself or neighbouring property or using the property as a brothel. It is one of the most common reasons that landlords serve notices seeking possession and one of the biggest causes of stress to landlords and the neighbours who have to live next to an anti-social tenant.

The purpose of this guide is to briefly outline what a landlord can do, if faced with a tenant who is engaging in anti-social behaviour. In it, we will provide you with the information you need on how to avoid anti-social behaviour, your liability in regards to anti-social behaviour, how to deal with it when it does occur and what support is available from the police or local authorities if you cannot resolve it yourself.

What do we mean by 'persistent behaviour'?

Persistent behaviour means it must have occurred multiple times. One-off events would not be considered a persistent pattern of behaviour but four events spread over a number of years may be considered persistent if the anti-social behaviour is sufficiently serious (Birmingham CC v Ashton), while in other less serious examples there may need to be more examples of persistent behaviour.

What is not considered anti-social behaviour?

In general, noise or behaviour that would be considered part of everyday life is not something that would be considered anti-social behaviour. Poor parking, children playing, groups of people on the street without causing a disturbance, DIY at reasonable hours, etc would not be considered anti-social behaviour.

Nor are one-off events such as a loud party, as anti-social behaviour must be reoccurring rather than a singular event.

As a starting point, you are normally only responsible for addressing a tenant's behaviour if it takes place within the curtilage of the property or is associated with the tenant's occupation of the property. You are not responsible for handling a tenant's behaviour away from the property where it is not linked to the occupancy.

However, this means that you do have a responsibility to deal with it if it does occur inside your property. There may be other tenants or neighbours affected by this behaviour. You or your agents may also be the victim of anti-social behaviour when you visit the property.

You may also be responsible as a condition of your licence. In any licensed property, the licence holder is required to take reasonable steps to ensure that tenants are not causing problems within the boundaries of the property through anti-social behaviour.

There are certain steps that you can take to try to prevent anti-social behaviour before it starts. By checking your tenants ahead of time and ensuring they understand their responsibilities, you can limit the likelihood of anti-social behaviour in the first place.

Pre-tenancy checks

It is good practice to require written references from prospective tenants. In areas which are subject to selective licensing in order to combat anti-social behaviour, it is a requirement of holding a licence that the landlord must seek written references from tenants.

A few local authorities run tenant accreditation schemes. These enable tenants whose behaviour meets certain standards to be recognised as good tenants. A landlord should ask the local authority whether they currently run a tenant accreditation scheme and if so, whether a prospective tenant is accredited with it.

Property improvements

Excessive noise is one of the most common causes of complaints from neighbours. You can help to prevent this by ensuring that there is adequate sound insulation in the property. This is particularly important in flats or HMOs where you have specific obligations to the freeholder or the other tenants within the building.

Should you need to take action later this may also strengthen your case at court. One of the factors that the court will take into consideration is whether the property condition has contributed to the anti-social behaviour.

Include terms about anti-social behaviour in your agreements

You should ensure that you use a properly drafted tenancy agreement which includes specific clauses relating to anti-social behaviour. The most common issues which may give rise to problems and which can be addressed through terms of tenancy agreements are:

• Sub-letting by the tenant
• Anti-social or criminal activity which may become a nuisance or cause damage to the property or the neighbourhood or which may render the property insurance void
• Noise pollution, especially late at night. This could be general noise associated with frequent entrants to the property or specific noise audible outside the property caused by musical instruments, television or radio or other equipment

By ensuring the agreement has a suitable clause, you can ensure your tenant is aware of their responsibilities and rely on the clause later should you need to take action around the behaviour in question.

Talking to your tenant

The first step is to talk to the tenant if possible and make it clear that the behaviour complained of is not acceptable. Alternatively, you can write to the tenant. In any case, any conversations should always be confirmed in writing. The correspondence needs to make  clear the nature of the complaint and what action they need to take. You can also remind them that this is a breach of their tenancy agreement and there may be consequences if it continues.

You may also want to consider mediation if you cannot reach an agreement with your tenant about their behaviour. There are a number of mediation services available that could potentially solve the issue for you without needing to resort to court action.

Before taking this action you need to be satisfied that any complaints received about your tenant are in fact genuine and there should hopefully be some evidence available before you take up the issue with the tenant.

Talk to the neighbours and/or contractors

To deal with anti-social behaviour, you will need evidence. Speak to the affected neighbours or tenants and ask them to keep a record of the behaviour. An incident diary setting out the times, duration and nature of the anti-social behaviour is ideal. This will support any action you, the local authority or the police may need to take later.

Taking action for breach of contract

If you have a sufficiently clear clause in your agreement then it is possible to seek an injunction through the courts. This will compel the tenant to abide by the terms of this agreement. However, as injunctions can be quite complex you should certainly seek legal advice before doing this.

If your tenant refuses to stop the anti-social behaviour you may have to consider serving a Section 8 or Section 21 notice if you have an assured shorthold tenancy. 

Given this, you should try to exhaust your other options first before attempting to seek possession. If you are determined to serve a notice however, then you have two options for dealing with anti-social behaviour:

• Section 21 notices - these notices do not require you to provide a reason why you are seeking possession. This notice can only expire on or after the last day of the fixed term of a tenancy
• Section 8 notices - this notice relies on specific grounds for possession. This would be either Ground 14 (for general anti-social behaviour) or Ground 7a (typically only available to PRS landlords where a closure order of more than 48 hours has been applied to the property)

Next year Section 21 notices will be abolished. However, in the meantime, if you are seeking possession it will usually be the better option for evicting an anti-social tenant. This is because a Section 8 notice requires evidence that the ground applies and often leads to a number of court hearings to establish this.

If you are seeking possession based on a Section 8 notice then you will need to include one of the anti-social behaviour possession grounds. 

Ground 7a

Ground 7a is a mandatory ground for possession. This means that the courts must grant a possession order if you can prove that it can be applied to your tenant. It can be used where -

• The tenant, or anyone else living or visiting the property, has been convicted of a serious crime (as defined by Schedule 2a of Housing Act 1985) since October 2014 in the locality, against a person who lives in the locality, or against the landlord or one of their representatives in connection with their property management work.
• The tenant, or anyone else living or visiting the property, has been found in breach of an injunction to prevent nuisance or annoyance (IPNA) in the locality, against a person who lives in the locality, or against the landlord or one of their representatives in connection with their property management work.
• The tenant, or anyone else living in or visiting the property, has been convicted of an offence for breaching an abatement notice or court order in relation to noise nuisance.
• A closure order of 48 hours or more has been placed on the property
• The tenant, or anyone living in or visiting the property, has been convicted of a breach of a criminal behaviour order that prohibits an activity in the locality, or an activity against the landlord or someone else who lives in the locality.

The limbs of Ground 7a will only be applicable where the conviction has not been successfully appealed. Similarly if an appeal is still pending it will not be possible to use this ground.

In practice, most PRS landlords will not be able to use Ground 7a without significant support from a local authority and/or the police.

Ground 14

Ground 14 is a discretionary ground available to landlords where the tenant, or someone else living in or visiting the property is -

• guilty of behaviour causing or likely to cause nuisance or annoyance to anyone living in, visiting or carrying out a lawful activity in the locality;
• guilty of behaviour causing or likely to cause nuisance or annoyance to the landlord or someone employed (whether or not by the landlord) in connection with the landlord's housing management functions;
• convicted for using the premises, or allowing them to be used, for illegal or immoral purposes
• convicted of an indictable offence committed in the locality. This means an offence that is not exclusively tried in the magistrate's court.

This ground is used more often than Ground 7a as it does not require a conviction, allowing neighbours and other tenants to provide supporting evidence for the harm that the tenant's behaviour has caused.

Anti-social behaviour must be reasonably serious to warrant including on a Section 8 notice. You must have clear evidence that anti-social behaviour is causing harm to others and that this harm is persistent and likely to occur again. In addition to this, you should have taken steps to address the tenant's behaviour before serving notice.

The more serious or persistent the anti-social behaviour is, the more likely it is to warrant possession. Particularly where it is considered likely the anti-social behaviour will continue, or the danger of it reoccurring is sufficiently serious to warrant a possession order immediately.

If the anti-social behaviour is sufficiently serious, including serious convictions, then the courts should not suspend the possession order without good reason (Sandwell MBC v Hensley).

Should I hire a solicitor if I am using Ground 14 as part of my notice?

Anti-social behaviour is a complex area and landlords are well advised to have legal representation if they are planning to use Ground 14 as part of their notice. These cases often cut across a number of complex areas involving mental health (Accent Peerless Ltd v Kingsdon and Anor) or homelessness issues where landlords would benefit from legal counsel. 

Possession for anti-social behaviour requires a relatively high bar of evidence and so you will need as much evidence as you can muster to show the behaviour is persistent and warrants possession. This evidence can take many forms but ideally you will have as many of these types of evidence as possible to show possession is warranted.

If you have collected evidence you are advised to speak to a solicitor before proceeding to get their legal opinion on whether it will be sufficient and whether ground 14 should be used.

Witness statements

Typically evidence of anti-social behaviour and/or nuisance will include witness statements from those affected. In Wales this means the neighbours or other tenants in a HMO.

In England, this can also include evidence from the landlord, agent or one of their contractors if the tenant has been engaging in anti-social behaviour towards them which has obstructed them from performing their property management duties.

Incident diaries

One of the best ways to establish the persistence of anti-social behaviour is via an incident diary. Ask the neighbours or other tenants to keep a record of each incident of anti-social behaviour. This should include the dates and times of each incident, a description of the behaviour in question and, if relevant, how long the anti-social behaviour persisted for during each incident.

Evidence of police/local authority involvement

Where possible any evidence of police or local authority involvement should also be included as part of your evidence. For example, if your tenant has been engaged in persistent noise nuisances you may have evidence of local authority involvement. The neighbours may be able to assist with this, particularly if they have made any complaints regarding the anti-social behaviour.

Evidence of steps taken to stop the anti-social behaviour prior to serving notice

Whenever you apply to court, the pre-action protocols set out an expectation that you have taken steps to avoid possession action. As a result, it is important you show what steps you have taken to address the anti-social behaviour. If you have written to the tenant or discussed the ASB with them then you should document it, as well as any steps you have agreed with them at these stages. You should also include any interviews with the people affected by the anti-social behaviour.

Each anti-social behaviour case is highly fact-specific (Knowsley Housing Trust v Mcmullen) and it will be up to the court to consider the relative merits of each case based on the quality of the evidence provided and the seriousness of the anti-social behaviour.

Judges have to take a number of factors into consideration when determining whether or not to grant a possession order and will only grant possession if it is reasonable to do so.

In deciding whether it is reasonable to grant possession, Section 9A of the Housing Act 1988 requires the court to consider:

• the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;
• any continuing effect the nuisance or annoyance is likely to have on such persons;
• the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.

They will also have to balance the likelihood of repeated behaviour against the seriousness of the conduct and the defendant's expression of remorse or statements that the behaviour would stop.

For example, in Sandwell v Hensley the court initially decided that a suspended possession order was warranted because of the operation of a cannabis farm in the property. On appeal it was decided that this behaviour was sufficiently serious to require the tenant provide a sound basis to believe that no further incidents would occur. As a result, it is reasonable to expect that where a crime has occurred then this significantly strengthens the likelihood of successfully gaining possession.

Is it possible to gain possession if the tenant is not involved in anti-social behaviour but their visitors or other occupants are?

Yes, previous case law has established that the tenant does not have to be involved with the anti-social behaviour of their guests or their occupiers (Tuitt v Greenwhich LBC) and a possession order may be made outright in these circumstances. However, the courts should consider whether or not the tenant has made attempts to stop the anti-social behaviour by evicting the occupant or banning the visitor from their home before granting the possession order.

Community Protection Notices

Since 1 October 2014, local authorities have had the power to issue Community Protection Notices if your tenant has done something that is having a detrimental impact on the quality of the locality. These notices are designed to address behaviour that is persistent or continuing. 

Failure to comply with the requirements laid out in these notices is a criminal offence.

Abatement Notices

Where the tenant is engaging in activity that could be considered a statutory nuisance, they can be served with an abatement notice.

Closure Orders

Both local authorities and the police can issue closure orders if the anti-social behaviour is sufficiently serious to warrant it. These notices are typically used for situations where criminal behaviour such as drug dealing or pop-up brothels are occurring and the property needs to be shut down immediately to prevent the behaviour reoccuring.