As a number of Councils and Housing Associations in London, Manchester, Salford and Birmingham say that they intend to evict tenants involved in rioting (and Grant Shapps has jumped in to back them, as has David Cameron), we’ve been requested to take a quick look at the relevant grounds of Housing Acts 1985 and 1988 and consider the ramifications.

The relevant grounds for an eviction would be Ground 2 of Schedule 2 of Housing Act 1985 (for secure, Council tenants) or Ground 14 Schedule 2 Housing Act 1988 (for assured, housing association tenants). These are pretty much identical, both read:

The tenant or a person residing in or visiting the dwelling-house— (a)has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or (b)has been convicted of— (i)using the dwelling-house or allowing it to be used for immoral or illegal purposes, or (ii)an indictable offence committed in, or in the locality of, the dwelling-house.

Both are discretionary grounds, which mean that the Court must also be satisfied that it is reasonable in the circumstances to make a possession order and that the court has a further discretion to impose a postponed or suspended possession order with conditions.

There can be little doubt that rioting and/or looting would be likely to cause a nuisance or annoyance. There are likely to be large numbers of convictions for indictable offences as well. However, the nuisance or the offence must be in ‘the locality’ of the tenanted property. ‘Locality’ is not defined in either Act or elsewhere. I would anticipate that there may well be some difficult cases on what constitutes a locality to come, where the offence/nuisance is not within the immediate neighbourhood of the property. But certainly an offence committed in another borough is highly unlikely to count.

We should note in passing that Grant Shapps, a housing minister whose knee is never knowingly un-jerked, has today suggested that the ‘locality’ condition should be scrapped so that those found guilty of ‘being involved in rioting’ in another area could be evicted. The trouble with that is it would simply mean being convicted of an arrestable offence, even if wholly unrelated to the home or to housing, would be a ground for eviction. That may just be a step too far for all kinds of reasons, not least Article 8. Mr Shapps also points to his desire to introduce a mandatory ground for possession for those convicted of ASB – but this wouldn’t apply to offences committed outside the locality as they would not be ‘housing related’.

If the rioter was in the locality but is not the tenant, e.g. a member of the household, or even a visitor, the tenant would still potentially be caught by these grounds. This would be the case even if the tenant had no involvement at all, or didn’t even know that the other person did. So parents, partners etc. could well face eviction proceedings. While the court can consider the circumstances of non-offending occupiers and the relationship between the offence and the landlord-tenant relationship, the court must also consider the seriousness of the offence and its effect on others, and the likelihood of further offences.

Anyone wondering about a proportionality issue under Article 8 should note that these are discretionary grounds (at least to date!) and that the Court’s consideration of whether it is reasonable to make an order has been previous considered to be in effect an application of the principle of proportionality (E.g. Lord Brown in Kay v Lambeth).

Of course if the rioter (or tenant of rioters household) is on an introductory or demoted tenancy, things are quite different. There isn’t time to go through the whole process, but there, on an otherwise mandatory possession order, proportionality defences would come into play.