Managing the expectations of your tenants

The Court of Appeal has just ruled on whether a tenant can apply for judicial review of a decision to seek possession. Nicola Buchanan analyses the outcome.

In McGlynn v Welwyn Hatfield District Council, the Court of Appeal held that the tenant was able to challenge, on public law grounds, the council's decision to issue possession proceedings.

Facts

The defendant was a tenant of the council. The tenancy had been granted pursuant to the council's homelessness obligations under Part VII of the Housing Act 1996 and was terminable by service of a notice to quit.

From 2003, the council had received numerous complaints of anti-social behaviour caused by the defendant and visitors to his property. As a result, the council served a notice to quit. The council then sent a letter to the defendant advising him that:

• they did not take action against a tenant unless satisfied that a significant breach had taken place, and which had caused nuisance and annoyance to other residents;
• if they proceeded to seek a possession order, the defendant would have an opportunity to offer a defence;
• if they did not receive any further complaints of anti-social behaviour linked to the defendant, they would consider granting him another tenancy.

In 2005, the council commenced proceedings for possession after receiving a series of further complaints. The defendant defended the claim by arguing that:

• he should have the opportunity to challenge, on public law grounds, the decision made by the council in 2005 to issue possession proceedings;
• the council's letter had created a legitimate expectation that it would not seek possession unless satisfied that a further significant breach of the tenancy had taken place when it wrote to him in the terms it did in 2003; and
• the council should have reconsidered the circumstances to assess whether a further significant breach had taken place before making its decision in 2005 and so their decision to issue proceedings was unreasonable.

Decision

The Court of Appeal confirmed that the council's decision to evict could be challenged on public law grounds. It went on to state that there was no formulaic set of factors that might be relied upon by an occupier to support an argument that a council's decision to seek possession (or serve a notice to quit) was one that no reasonable council would have taken. The question could only be answered by applying public law principles.

The court also decided that in this case, due to the length of time that had elapsed between the service of the notice to quit and the possession proceedings, it was reasonably arguable that the council had not done enough to satisfy itself that there had been some significant further breach.

What does this mean for you?

Over the last few years, the courts have been extending the principle of legitimate expectation to residential tenancy law and the McGlynn case is another example of this.

It is important because of the recent decision in London & Quadrant Housing Trust v Weaver, which confirmed, in principle, that housing management decisions by RSLs may be capable of challenge on public law grounds in the same way that decisions by public bodies can be challenged.

The McGlynn case demonstrates that you need to be careful about what you say to tenants when managing their tenancies. You may inadvertently say something or make a representation that in each case gives the tenant a legitimate expectation that, when making a decision concerning the management of their tenancy, you will make the decision in a particular way and/or take into account certain factors when making that decision.

If you have created such an expectation, and then you do not make the decision in accordance with the expectation and/or your decision is not a decision that a reasonable RSL would make, your decision will be capable of being challenged by the tenant.

We suggest that you consider the following steps to address these risks:

• understand when a decision is being made concerning the management of property. This will depend upon the circumstances of an individual case. In the context of evictions, it is likely to be immediately before issuing instructions to serve a notice seeking possession, issuing possession proceedings and/or deciding to enforce a possession order.
• keep a record of everything that is said or written to a tenant. Review this before making a decision to assess whether anything has been stated that is relevant to the decision you are making.
• at the time the decision is made, make a note highlighting all the factors known to the decision-maker at that time and recording the rationale for reaching the decision. This document can then be relied upon in the event of subsequent challenge.
• if you are concerned that you have said or written (or you intend to say or write) something to a tenant that may create a legitimate expectation, seek legal advice.

Nicola Buchanan is a senior associate at Eversheds.

Tel: 0845 497 8156