Is reasonableness considered when making a demotion order? - Your questions answered

Is reasonableness considered when making a demotion order? - Your questions answered

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Author: Bukola Aremu

Section 14 of the Anti-Social Behaviour Act 2003 gave registered providers as well as local authorities the power to demote assured or secured tenancies to a 12 month probationary tenancy. This article covers the key points you need to know.

For assured tenancies it becomes an AST and for secure tenancies it becomes a demoted tenancy. If within the year of demotion the tenant continues to cause nuisance the tenancy can be terminated by simply serving a notice on the tenant without the need to prove a ground for possession.

Before the Court makes a demotion order it must be satisfied that:

  • the tenant or a person residing or visiting the dwelling house has engaged or has threatened to engage in conduct to which s153A or 153B of the Housing Act 1996 as amended by the Anti- social behaviour Act 2003 (anti- social behaviour or use of premises for unlawful purposes) applies
  • it is reasonable to make an order

Before proceedings are issued the landlord must serve a notice of intention to apply for demotion before the Court can entertain proceedings. The court must not entertain proceedings for a demotion order unless either:

  • the landlord has served on the tenant a notice
  • the court thinks it is just and equitable to dispense with the requirement of the notice.

The notice must:

  • give particulars of the conduct in respect of which the order is sought
  • state that the proceedings will not begin before the date specified in the notice
  • state that the proceedings will not begin after the end of the period of twelve months beginning with the date of service of the notice

The date specified in the notice must be at least two weeks from the date of service of the notice. The 12 months period of notice does not begin until service of the notice, not the date specified on the notice.

Demotion orders can be sought within possession proceedings as an alternative to a possession order or applications can be made on a free standing basis. Whatever method is used the Court cannot grant a demotion order unless it is satisfied that it is reasonable to do so. The consideration of reasonableness is similar to the factors taken into account when deciding whether it is reasonable to make a possession order save that in cases of demotion it is specific to nuisance and annoyance/use of premises for unlawful purposes.

The Court of appeal has repeatedly emphasised the importance of the judge indicating in the County Court judgment that the question of reasonableness has been expressly considered and what factors were taken in consideration.

In determining reasonableness the Court is directed by the Anti- Social Behaviour Act 2003, Section 16 (2) -

The Court must consider, in particular:

  • 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.

So is reasonableness considered when making a demotion order?

Yes, reasonableness is considered by the Court as it must balance the interests of the victims of the behaviour complained of as well as considering other factors relating to the perpetrators personal circumstances. In essence the consideration of reasonableness is identical to possession proceedings bought under discretionary grounds save that demotion is specific to anti-social behaviour.

I am often asked whether it is better to go for a possession order rather than a demotion order. The above clearly sets out that the same principals are considered in both claims, namely breach of tenancy and whether it is reasonable to make the order. However after a demotion order is granted, should the tenant breach the order most social landlords are not comfortable serving a s21 notice in the same way as they tend not to serve s8 notices under ground 8 (rent arrears mandatory ground). This is something that should be considered early on and then the appropriate action will be carried through to possession.