Are Wandsworth’s tenancy agreements legal?
Remember Wandsworth Council’s attempt to evict the mother of an accused rioter on the basis of a “so-called” breach of tenancy conditions? This was in the context of the Council’s secure tenancy terms, introduced in 2009. They included a number of things that tenants, “lodgers, friends, relatives, visitors and any other person living in the property are not allowed to do whilst in the London Borough of Wandsworth”, including causing a nuisance to others, causing damage to property etc.
I maintained at the time that surely it cannot be “reasonable” to include in a tenancy agreement matters that are quite outside the specific requirements of the tenancy and that, therefore, the whole basis of the Council’s tenancy agreements were flawed. I understand that in legal terms this might be referred to as “personal obligations” and not relevant to tenancy agreements. Just imagine a contract to buy a car or a washing machine, which included clauses covering personal behaviour!
I know this will sound fanciful to some but this kind of clause covering personal behaviour and not just the main object of a legal contract was the kind of mechanism used by the aristocracy in Tsarist Russia to keep the peasantry under control and in Hitler’s Germany to keep unionists in check and if allowed to pass unchallenged could, in theory, be used by Tory Wandsworth as a reason for evicting Labour voting tenants – or in Lambeth of evicting Tory voting tenants. I jest, but only a little. Clearly contract law should not be used to impose standards of behaviour on anyone – after all one person’s right to protest is another’s riotous assembly.
Well, I have just heard about a County Court judgment in Wandsworth County Court, where the district judge took exactly my position.
The tenant was a Wandsworth secure tenant for some 30 years. There had been no known problems with his tenancy until 2010/11 when he went to another estate, and, for a period of about 8 months, “painted” unpleasant graffiti on someone else’s front door. He had a “perceived” grudge against the other resident.
The tenant was arrested, pleaded guilty and received a prison sentence. About 3 months after he was released. Wandsworth brought possession proceedings on the grounds specified in the tenancy contract, i.e. of causing a nuisance to anyone living in the borough of Wandsworth and/or the local area, of doing anything which interferes with the peace, comfort or convenience of other people living in the borough of Wandsworth, of causing damage to property belonging to other people or council property in the borough of Wandsworth, etc.
The District Judge held that insofar as it applied to the entire borough, the clause was not an “obligation of the tenant”; that insofar as it related to anything which was “local” to his flat then Wandsworth had failed to prove, as a matter of fact, that his ASB (anti-social behaviour order) was in the area or in any event, it too was not an obligation of the tenancy and hence it wasn’t reasonable to make an order for possession. Stripped of the legal phrasing that means that, in the judge’s opinion, the tenant had done nothing to impact his tenancy. The judge did not attempt to justify the tenant’s behaviour or excuse it but he did say that right or wrong it had nothing to do with his rights to contimue his tenancy.
The possession claim was dismissed. In my view, Wandsworth has little choice but to appeal. If it does not, then it essentially accepts that its tenancy agreement is fatally flawed and any management actions taken on the basis of the agreement is doomed to fail. If it loses the appeal then the Council, and many others will have to re-think.
Indeed if the courts throw out Wandsworth’s position then David Cameron and others will have to re-think their unconsidered recommendations to Councils to evict and/or introduce legislation to change the law. However, this would be so controversial that I imagine the Law Lords would have problems with it – once again the Tory tendency to act on the hoof is getting them into trouble.
My thanks to my fellow Councillor Simon Hogg and website nearlylegal for much of the content of this blog.
Tony Belton
Tony Belton 