A decision in the High Court last year, which has threatened to undermine the purpose of Introductory tenancy agreements and by implication, the probationary tenancy regime, will be considered again in the Court of Appeal later this year.
This decision, which appears to be at odds with recent case law, is leading to delay in county courts hearing some claims promptly. Defendants are seeking adjournment of hearings only then to produce a defence that they have exhibited good behaviour since the claim was issued.
Robert Armour was granted an introductory tenancy agreement by Southend-on-Sea Borough Council in January 2011. Complaints about Mr Armour’s conduct were received shortly after he moved into the property. The local authority then served on Mr Armour, an eviction notice, and then, with Mr Armour’s involvement, conducted a review of their decision to take action to repossess the property. The decision was upheld following the review and a possession claim was issued.
There were delays in the case coming to trial because the court on three occasions adjourned the case for reasons including requests made by Mr Armour for time to secure public funding; then to pursue abortive judicial review proceedings; and then also so that he could be assessed in order to determine whether he lacked capacity to further defend the claim.
The county court judge dismissed the possession claim on the basis that there had been no further reports of bad behaviour since the issue of proceedings and Mr Armour had complied with the terms and conditions of his introductory tenancy agreement for an 11 month period. Whilst no criticism was made of the council in its conduct of the claim, including its compliance with internal procedure, it was decided that taking Mr Armour’s good behaviour into account at the date of trial, meant – in this judge’s opinion – it was no longer proportionate to make a possession order.
The decision was appealed to the high court which decided that a period of good behaviour was a relevant consideration when assessing the proportionality of the eviction, thereby driving a coach and horses through the council’s introductory tenancy regime.
The current position
An appeal hearing will take place later this year. Whatever the outcome, it is hoped that the court will provide further guidance to social landlords on what factual circumstances could give rise to a successful defence to a possession claim brought against probationary tenants.
Kary Withers acted for the local authority in this matter.