Conviction for a serious offence and possession proceedings

Where a conviction post-dates the commencement of possession proceedings it is possible to amend those proceedings to rely on the conviction as a mandatory basis for possession. The court also has the power to amend a suspended possession order made on a discretionary ground to an outright order on a mandatory ground based on a subsequent conviction. The appeals of Hajan v Mayor & Burgesses of the London Borough of Brent and Kerr v Poplar Housing and Regeneration Ltd Community Association [2024] EWCA 1260 were heard together as both concerned a landlord’s wish to rely on conviction for a serious offence as a mandatory ground for possession. In Hajan the tenancy was a secure tenancy and possession proceedings were already afoot when the landlord received notice of the tenant’s conviction. Kerr concerned an assured tenancy in which there was a suspended possession order based on rent arrears (which suspended order the landlord wished to convert into an outright order as a result of a conviction). Since the enactment of the regimes governing secure and assured tenancies, antisocial behaviour has been a discretionary ground for possession but over the years amendments have been made to make it easier for landlords to recover possession in cases of antisocial behaviour. The Anti-social Behaviour, Crime and Policing Act 2014 introduced new mandatory grounds for possession for both regimes (albeit with different procedural requirements) where there has been antisocial behaviour resulting in conviction for a serious offence. The purpose of the mandatory ground is to expedite the eviction of a landlords’ most antisocial tenants and bring faster relief to victims. In the case of a secure tenancy, a court can rely on the mandatory ground if a compliant notice has been given. This notice must set out the date after which proceedings may be begun and a court shall not entertain proceedings brought before that date,  which date also acts as a term of reference for calculating the review period. In Hajan, once the landlord received notice of the conviction it served a further notice seeking possession. The tenant did not avail himself of the review and, thereafter, the landlord applied to amend the existing proceedings, for which application was granted. The tenant appealed, arguing that as the proceedings were already afoot they could not properly be said to have begun after the notice and therefore they should not have been amended. The court rejected this argument as being wasteful in terms of costs and time and contrary to the CPR, which encourages all issues between parties to be determined in the same action. It allowed the landlord’s application to amend the amending order to state that it takes effect “from the date of this order”. If the court fixes the date on which the amendment of the proceedings is to take effect there is no difficulty in interpreting the word “proceedings” to mean the amended proceedings and for those proceedings to have begun on the date when the order took effect. After the suspended order had been made in Kerr, the tenant’s son was sentenced to 14 months in prison. Based on this conviction, the landlord served notice seeking possession which stated that possession would not be sought until after 28 March 2021 and advised of the tenant of their right to review that decision. The tenant took advantage of this right to review but the landlord’s decision was upheld. The landlord then applied to the court in the extant proceedings for the suspended order to be converted into an outright order. The district judge acceded to this request, finding that section 9 of the Housing Act 1988 gave that power. Section 9 allows the court to stay, suspend or postpone the date of possession for such period as the court thinks just. The appellate court upheld the district judge’s decision. Since the power under s9 includes the discharge of conditions originally imposed, the court may discharge conditions, subject to which the order for possession was suspended and allow it to take effect as an immediately enforceable order. It confers on the court a continuing jurisdiction (until execution of the possession order) to re-examine the terms of any suspension in the light of circumstances existing at the time when it is asked to carry out that review. The appeals of both tenants were dismissed. Elizabeth Haggerty is a barrister