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Breach of injunction order leads to imprisonment and possession of tenant's property

29 October 2008

A West Midlands Housing Association (Association) successfully obtained an on notice Injunction Order against one of its tenants, as a result of noise which caused substantial nuisance and annoyance to an owner occupier family who lived next door.

Birmingham City Council had served the tenant with an Abatement Notice which she subsequently breached on 6 occasions, which had resulted in her noise making
equipment being seized on each occasion.

There were concerns over the tenant’s mental health following her 2 children being taken into care. Unfortunately the Association had no knowledge of what the tenant’s mental health problems were. The Association felt appropriate support could be put in place to help her to sustain her tenancy however she refused to cooperate with the carrying out of an assessment. The mental health professionals said they were powerless to do anything without the tenant’s consent.

As a result of the tenant evading service, the Association obtained an Order for alternative service which permitted the service of the Court papers through the tenant’s letterbox. The tenant continued to play music and despite also being served with subsequent warning letters.

Reluctantly the Association decided to make a Committal Application. When the matter came before the court, the Circuit Judge held, (in the tenant’s absence) the 7 alleged breaches of the injunction order were proved and sentenced the tenant to 3 months in prison. A Warrant for her arrest was issued and the tenant was conveyed to prison four days later. The tenant was due to serve 6 weeks of her 12 week sentence however, she was released after 5 weeks under the Early Release Scheme. It was hoped at this time an assessment would be carried out. Unfortunately, the prison service had no concerns about the tenant whilst she was in prison and an assessment was not carried out.

Between the time the Committal Application was issued and the hearing, there were a further 17 breaches of the Injunction Order and so the Association made a second application to commit the tenant to prison and served a Notice Seeking Possession.

The hearing of the Association’s second application to commit the tenant to prison was also heard in the tenant’s absence. The 17 breaches were proved and the tenant was sentenced to a further 4 months in prison which was suspended for 6 months.

The Association received complaints of further breaches. Rather than invoke the suspended sentence, the Association unwillingly pressed ahead with its claim for possession and successfully obtained a 14 day Possession Order. It was necessary for the Association to apply for a Warrant of Eviction and the tenant was subsequently evicted. Two members of the Association’s care and support team were in attendance at the time of the eviction and supported the tenant to make a homeless application to her local neighbourhood office. On entry to the property by the Association the tenant was found to have been sleeping on a mattress in the living room and had written disturbing things on the living room walls in red paint.

Throughout the proceedings the tenant made no contact with the Association or its’ legal representatives nor did she instruct anyone to act on her behalf.

Yetunde Dania, Partner at Shoosmiths says,
"In this case possession really was the last resort as it was not what the witnesses or the Association wanted. It is unfortunately a reality that where a person refuses to acknowledge they may have mental health problems and refuse to engage, then the only other option is for the landlord to issue proceedings in the hope this may encourage them the seek assistance. Often it does, but where is does not and others continue to be affected by their behaviour, the only alternative is possession."

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