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A B C D E F G H I J K L M N O P R S T V W Y

Housing and Regeneration

Breach of suspended possession orders – applying for warrants
Friday 7th September 2018

On 1st October 2018 an amendment to the Civil Procedure Rules will take effect to remove the need to make an application to court for permission to issue a warrant of possession for breach of a suspended possession order where the breach is a failure to pay rent and / or arrears.

Please note that an application for permission will still be required where the breach of suspended order is on some other ground, e.g. breach of tenancy.

This change is a much awaited one following the decision in Cardiff City Council v Lee.

Permission will still be required for all applications prior to 1st October 2018.

For more information on the topic, please contact Josephine Morton


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Council Housing: How not to evict people
Friday 27th April 2018

A recent case brought against Ashford Borough Council (ABC) demonstrates just how costly unlawful eviction practices can be for landlords.

Lutman v Ashford Borough Council, unreported, Canterbury County Court, 05 October 2017.

Facts
Mrs Lutman had been a secure tenant of ABC since 2011. Her husband, Mr Lutman, also lived in the property in question.

In late 2012, Mrs Lutman was admitted to hospital, suffering from dementia. Mr Lutman remained at the property until, in February of 2013, he was sentenced to 18 months in prison for an unrelated offence.

Whilst Mr Lutman was incarcerated, Mrs Lutman was moved from hospital to a residential care home. ABC sent an officer to this care home in October 2013 to have a document signed by Mrs Lutman. The document purported to be some form of surrender of the property. Mrs Lutman wrote her name in block capitals on the document.

That same month, ABC also served a notice to quit on Mrs Lutman. The reason given for serving the notice was that Mrs Lutman had ceased to occupy the property and Mr Lutman was in prison.

On 12 November 2013, Mr Lutman was released from prison and returned to the property to find that the locks had been changed.

ABC had never instituted possession proceedings. They had simply changed the locks sometime in early November.

Throughout the whole period, rent had been paid from a joint account and no payments were missed. Rent was paid and accepted up until December 2013 (after ABC had changed the locks).

Decision
The judge held that at all material times, ABC had been aware that Mrs Lutman lacked mental capacity and so the document purporting to be a surrender was not valid.

The judge relied in particular on the evidence of the officer that had visited Mrs Lutman with the document. That officer gave evidence that “it would not be correct to say that she understood the notice.” Mrs Lutman also failed to hand over the keys to the property when ‘signing’ the document, though the judge was of the opinion that even if she had, she would not have known the significance of her actions.

As Mrs Lutman lacked the capacity to make decisions about her housing, it could not be said that she had a firm intention to not return to the property at any point. Further, despite being in prison, Mr Lutman’s primary residence was the property. This preserved Mrs Lutman’s secure tenancy through November and December 2013.

Damages of £40,575 were awarded to Mr Lutman for unlawful eviction, along with special damages of £1,000 in respect of lost property.

Comment

This case serves as a reminder of some key points when evicting tenants. Landlords must keep track of precisely who lives at the property, even though they may not be in occupation at the time. Landlords should also ensure that they take proper precautions, including liaising with Social Workers and Healthcare Practitioners, where their tenant lacks capacity to make key decisions about housing.

Finally and perhaps most importantly, the case is a reminder that Landlords should not take possession of residential properties without a court order so quickly. As ABC learned in this case, the financial consequences can be significant.

For more information on the topic, please contact Danny Greenland on 0151 600 3168 or via email.


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Be warned: Failure to serve a gas safety certificate prior to the commencement of tenancy is a once and for all breach
Friday 6th April 2018

On 2nd February 2018 HHJ Luba QC dismissed a county court appeal in the case of Caridon Property Limited –v- Monty Shooltz, holding that a landlord was prohibited from serving a S.21 notice if the tenant had not been provided with a copy of the current gas safety certificate prior to moving into the property.

It was held that a failure to serve the gas safety certificate in this way would result in a breach of the Gas Safety (Installation and Use) Regulations 1998 and, consequently, a breach of Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.

The consequence is that were the gas safety certificate was not provided to the tenant prior to the commencement of tenancy, it will not be possible to serve a S.21 notice at any future point, even if the certificate is subsequently served.

This applies to all ASTs (including starter tenancies) which commenced on or after 1st October 2015 but from 1st October 2018 will apply to all ASTs (including those commencing before 1st October 2015).

The outcome of this case was not the legislative intention of the Deregulation Act 2015. It is possible that this or a similar case will be overturned on appeal.

In the meantime, you should ensure that all new tenants are provided with the current gas safety certificate before the commencement date of the tenancy or, if earlier, before they move into the property.

The requirement is different for an EPC, which must be served on a tenant prior to the S.21 notice being served, rather than prior to the tenancy commencing.

To find out more on the topic, please contact Josephine Morton.


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Possession the absolute way
Monday 19th March 2018

Recorder Edge handed down judgment in the County Court at Liverpool On 12th March 2018 in a claim for possession based on anti-social behaviour issued by The Riverside Group Limited (“Riverside”) and heard at trial on 22nd and 23rd January 2018.

The claim for possession was based on Grounds 7A (Absolute ground for possession), 12 (Breach of tenancy), 13 (Property condition) and 14 (Nuisance and anti-social behaviour) of Schedule 2 of the Housing Act 1988.

The trigger incident for the Absolute ground for possession occurred in June 2015 when the tenant’s wife bit the ear off an innocent victim during a darts tournament being held at Birkdale Labour Club.  This incident occurred four miles away from the property and the victim lived within the locality of the property (a seven minute walk). The wife was convicted and received a custodial sentence and the tenant was convicted of perverting the course of justice in respect of the offence.

As well as pleading the Absolute ground for possession, Riverside also relied upon discretionary grounds based on breach of tenancy, property condition and nuisance and anti-social behaviour perpetrated by the tenant, including a number of criminal offences occurring within the locality of the property.

The lead officer at Riverside, Mr Christopher Hemlin, gave evidence that the anti-social behaviour seen in this case was amongst the worst he had seen in his role as a Community Safety Officer.

Recorder Edge stated in his judgment that Mr Hemlin impressed him as an honest and straightforward witness who was professional, diligent and even handed, such that he had no hesitation in accepting his evidence as accurate.

To the contrary, Recorder Edge commented that the tenant was an unimpressive witness and despite making allowance for the tenant’s mental health, commented that the tenant lacked credibility and was considered to be evasive, vague, uncertain and dishonest in his testimony.

The Judge was satisfied that the absolute ground for possession was made out and that it was a proportionate means of achieving a legitimate aim to grant a possession order.  The Judge also deemed it “necessary, proportionate and justified” to grant possession on the discretionary grounds in addition.

In his judgment, and for the purposes of the absolute ground, Recorder Edge rejected the defence argument that only incidents relating directly to the trigger incident could be considered on the question of proportionality, preferring instead the argument advanced on behalf of Riverside that the Judge had discretion to consider all matters he deemed relevant, whether occurring before, during or after the trigger incident. Both parties accepted that there was no higher court authority on this point in the context of the absolute ground.

Notwithstanding the tenant’s Equality Act defence, the Judge praised Riverside’s approach in dealing with the tenant’s personal circumstances, commenting that Riverside had made appropriate enquiries and acted appropriately and reasonably by offering support throughout directly to the tenant and indirectly to the tenant’s solicitors.

A forthwith possession order was granted.


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GDPR for Social Landlords
Wednesday 14th March 2018

Are you ready for the implementation of GDPR on 25th May 2018?

The Information Commissioner’s Office (ICO) has provided the following checklist to ensure that your business is ready for implementation:

  • You have conducted an information audit to map data flows.
  • You have documented what personal data you hold, where it came from, who you share it with and what you do with it.
  • You have identified your lawful basis for processing and documenting data.
  • You have reviewed how you ask for and record consent.
  • You have systems to record and manage ongoing consent.
  • Your business is currently registered with the ICO.
  • You have provided privacy notices to individuals.
  • You have a process to recognise and respond to individuals’ requests to access their personal data.
  • You have processes to ensure that the personal data you hold remains accurate and up to date.
  • You have a process to securely dispose of personal data that is no longer required or where an individual has asked you to erase it.
  • Your business has procedures to respond to an individual’s request to restrict the processing of their personal data.
  • You have processes to allow individuals to move, copy or transfer their personal data from one IT environment to another in a safe and secure way, without hindrance to usability.
  • You have procedures to handle an individual’s objection to the processing of their personal data.
  • You have identified whether any of your processing operations constitute automated decision making and have procedures in place to deal with the requirements.
  • You have an appropriate data protection policy.
  • Your business monitors your own compliance with data protection policies and regularly reviews the effectiveness of data handling and security controls.
  • Your business provides data protection awareness training for all staff.
  • Your business has a written contract with any data processes you use.
  • Your business manager’s information risks in a structured way so that management understands the business impact of personal data related risks and manages them effectively.
  • Your business has implemented appropriate technical and organisational measures to integrate data protection into your processing activities.
  • Your business understands when you must conduct a data protection impact assessment and has processes in place to action this.
  • Your business has a data protection impact assessment framework which links to your existing risk management and project management processes.
  • Your business has nominated a data protection lead or a data protection officer.
  • Decision makers and key people in your business demonstrates support for data protection legislation and promote a positive culture of data protection compliance across the business.
  • Your business has an information security policy supported by appropriate security measures.
  • Your business ensures an adequate level of protection for any personal data processed by others on your behalf that is transferred outside the European economic area.
  • Your business has effective processes to identify, report, manage and resolve any personal data breaches.

As registered providers of social housing you will be processing personal data for the purposes of GDPR in many of the activities undertaken by your staff.

Accountability and transparency are key features of the GDPR so knowing what data you have and how you intend to use it and being able to demonstrate this in a transparent way is crucial.

Please get in touch if we can assist with any training requirements or policy review.


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If the cap fits…
Friday 16th February 2018

Introduction

The Court of Appeal made a decision in W Portsmouth & Co Ltd v Lowin [2017] EWCA Civ 2172 at the very end of last year which clarifies some tension between two costs provisions in the Civil Procedure Rules.

Part 36 deals with how costs are awarded when a Part 36 offer for settlement has been in play. CPR 36.17(4)(b) provides that if a claimant beats their own Part 36 offer then costs should be awarded on the indemnity basis.

Part 47 deals with the procedure for assessment of costs and CPR 47.15(5) provides that if proceedings do not go beyond provisional assessment then the maximum amount the court will award to any party as costs of the assessment is £1,500 plus VAT plus any court fees paid by that party.

The tension between these two provisions arises when the following question is posed: can the indemnity award provisions of CPR 36.17(4) dislodge the cap provisions of 47.15(5)?

The Lowin case battled with this all the way to the Court of Appeal and final clarity was reached on 19 December 2017.

The facts

The substantive claim was one for damages as the claimant’s mother had died from mesothelioma, contracted when washing her son’s clothes which had been contaminated by dust fibres via his employment by the defendant. The claimant was awarded damages and then the court turned to the matter of costs.

The claimant had marginally beaten her own part 36 offer on costs, and, following submissions, Costs Judge Master Whelan granted that costs should be assessed on the indemnity basis as per CPR 36.17(4). The claimant claimed £6,091 for the costs of the assessment proceedings.

Application of the cap

The Master then applied the provisional assessment cap, as per CPR 47.15(5), as it applied in this case. Master Whelan did this despite having awarded costs on the indemnity basis. This meant the claimant was only entitled to receive costs of £2,805 which was £1,500 costs plus VAT and the £1,005 court fee. This was significantly less than the £6,091 which she had claimed.

The reason given for the Master’s decision was as follows:


‘Assessment of the claimant’s costs of the assessment can properly be undertaken pursuant to CPR 36.17(4)(c) but this does not, in my judgment, dislodge the effect of CPR 47.15(5) which has the effect of trapping the ‘maximum amount the court would award’ to the receiving party to £1,500 plus VAT plus court fees which in the case was £1,005.’
 

Thus the question was answered in the first instance, but not to the claimant’s satisfaction…

 

High Court appeal

The claimant appealed Master Whelan’s decision on the costs cap in the High Court.

She argued that the Master had erred in law and principle when he capped the summarily assessed costs by reasoning that CPR 36.17(4) does not dislodge the effect of CPR 47.15(5).

The claimant also submitted that the Master had erred in not considering the decision in Broadhurst v Tan [2016] EWCA Civ 94.

In Broadhurst, the Court of Appeal considered the impact of CPR 36.1(4) on fixed costs.

In repsect of this case Master Whelan concluded as follows:
 

‘The decision in Broadhurst v Tan has, in my view, no application as there is a conceptual difference between “fixed costs” and, as here, assessed costs subject to the cap in CPR 47.15(5).’


However Mrs Justice Laing in the High Court reversed Master Whelan’s decision on appeal by applying the Broadhurst principle such that a party awarded indemnity costs after beating a Part 36 offer should be eligible for indemnity costs. Her reasoning behind this was that there are tensions between the indemnity and the cap concepts and she favoured the indemnity concept, concluding that the cap provision prevents an indemnity provision from being fulfilled.

As such the claimant’s argument was accepted and the appeal was allowed.  Thus the question was answered again but this time in a different way; and not to the defendant’s satisfaction…

Court of Appeal

The defendant appealed the decision of Mrs Justice Laing and the question was subsequently heard in the Court of Appeal. The defendant’s key grounds of appeal were that there is no tension between the two provisions and so Broadhurst does not apply. In the alternative the defendant purported that if there was a tension it should be resolved in favour of the cap rather than the indemnity provision.

On 19 December 2017 Lady Justice Asplin considered the grounds of appeal and approved Master Whelan’s original approach by finding Broadhurst to be irrelevant. She reasoned that a cap does not prevent costs being assessed on the indemnity basis, which is different to how a fixed fee would. She also said that a cap does not ‘affect the quantum of the costs which are being assessed under that rule’.

Explaining her decision further, Asplin LJ said:
 

‘[the cap] merely inhibits the amount which can be awarded, the assessment of the party’s costs having taken place on the indemnity basis as required by CPR rule 36.17(4)(b). If the party’s costs assessed on the indemnity basis were less than the cap, the full sum would be awarded…. It follows that, with great respect, I do not consider that the judge was right to conclude…that there is a material conflict between costs assessed on the indemnity basis and costs assessed on that basis subject to a cap.’


Following her judgment, Asplin LJ went on to consider whether there is a tension or conflict between the provisions of the CPR and whether they must be resolved.

Mrs Justice Laing in the High Court found that there was a conflict because the cap potentially derogates from the right to have costs assessed on the indemnity basis.

Asplin LJ disagreed with this conclusion as can be seen by her application of the rules to the Lowin appeal. Asplin LJ considered the drafting of the provisions and their application or disapplication as follows:


‘CPR rule 47.20(4) provides expressly that Part 36 shall apply to the costs of a detailed assessment subject to four express modifications which are irrelevant for these purposes. No mention is made of CPR Part 47.15(5) and it is not modified in any way. It seems to me that if it had been intended that that rule was to be disapplied in the case of an assessment of costs on the indemnity basis under CPR rule 36.17(4)(b) there would have been an express reference to it in either or both of the provisions or in rule 47.20(4). There is nothing in any of those rules to suggest that rule 47.15(5) should be disapplied or modified’.
 

For these reasons, the defendant’s appeal was allowed, unanimously, and the cap was applied. The Court of Appeal restored the decision of the Master.

Finally the question is answered: the indemnity provision from Part 36 does not dislodge the cap provision of Part 47. The limit is a final limit and this does not prevent a party from their right to indemnity costs, it just caps the resulting award from any indemnity assessment.

Commentary

This is an interesting decision and one that may be disappointing for many. An award for indemnity costs can sometimes have more use perceptively than financially. It shows a party being compensated fully for their efforts in having to bring or defend a claim. This perceptive rather than financial advantage is now even more pertinent in light of Lowin as, if the cap provision applies, then the desired financial sum will not be awarded in practice.

RPs will be concerned with keeping costs proportionate in any cases they are involved in. It follows then that when proceedings conclude at provisional assessment, seeking indemnity costs may not be proportionally worth it if the full financial rewards of doing so will not be reached.

Many RPs have difficulties recovering costs from the other side, be that because they are legally aided, of limited means or otherwise.  Therefore in practice, when aiming for proportionality, the perceptive value of a costs award can often be more important than the financial value.

There are of course still advantages to making a Part 36 offer, including receiving interest and costs, and there are still advantages to going for indemnity assessment of those costs. RPs will no doubt want to act reasonably and make reasonable offers and in due course be rewarded for doing so.

As mentioned above, an indemnity costs award is perceived as a win and reflects well on the receiving party regardless of how much money is actually awarded. In any event an award of less that £1,500 is still worth pursuing on the indemnity basis and in some circumstances, where the perception of a costs award is important, so will an award of more.


To read the full Lowin judgment click here.


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Changes for Section 21 notices – an updated form and accompanying leaflet
Thursday 25th January 2018

Notices can be served under section 21 of the Housing Act 1988 to require possession of a property let on an assured shorthold tenancy. The required paperwork has been updated recently and both private and social landlords should be aware of the changes.

Changes to Form N5B

HMCTS have released a new version of Form N5B to be used in relation to accelerated possession proceedings after service of a Section 21 notice.

The new version of the form now requires confirmation by any claimant landlord, be they a private landlord or a registered provider of social housing, that Energy Performance and Gas Safety Certificates have been provided to the tenant.

The updated form also requires confirmation from private landlords that requirements have been met in relation to deposits and provision of the Government’s “How to Rent” leaflet.

Changes to the accompanying leaflet

The Government has made some changes to its “How to Rent” leaflet which must accompany every Section 21 notice served by a private landlord.

If an incorrect version or no leaflet at all is attached to the notice then it may be invalid.

Checklist for Section 21 notices

All claimant landlords must ensure they use the new form N5B for new claims relating to tenancies that commenced on or after 1 October 2015.

Private landlords should ensure they have the up to date version of the “How to Rent” leaflet.

The notice should be served in duplicate with the tenant asked to sign and return the second copy in acknowledgement of receipt.

Don’t forget these notices should only be used in relation to assured shorthold tenancies.

Further guidance

For the up to date “How to Rent” leaflet click here and for the new version of Form N5B click here.

If you would like further advice or help preparing a notice or completing the new form please don’t hesitate to get in touch with Ian Alderson on ian.alderson@brabners.com or 0151 600 3000.

 


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Is possession really nine tenths of the law?
Tuesday 16th January 2018

Harry Hallowes of Hampstead Heath made the news in 2007 because he became the legal owner of land in one of the wealthiest areas of London, without paying for it. Mr Hallowes was evicted from his flat owned by the local council in 1987 and spent the next 20 years living on a small plot of woodland where he used scrap materials to build a makeshift home and essentially used the land as if it were his own.

At the time there was opposition from city dwelling visitors to the Heath who saw Mr Hallowes’ acquisition of his plot as an encroachment onto their cherished public open space. Nevertheless the application was worth it for Mr Hallowes who continued to occupy the land, potentially worth £2 million, and on his death last year benevolently left the land to two homeless charities.

Over ten years later it remains as interesting as it was then to look at how the law views occupation and the impact it can have on ownership.

More individuals and organisations than you might think live or operate from land to which they have no registered claim. They usually believe the land is theirs and use it as if it is which, if done for the requisite time in the requisite way, can make for a strong adverse possession application.

Generally, if an occupier has unauthorised, factual and intentional uninterrupted possession of land for at least ten years, to the exclusion of all others, then they may have a chance of registering, and therefore formalising, their ownership at the Land Registry by making an adverse possession application.

But is it worth it?

Such applications can be time-consuming, complicated and costly. Applicants need to produce as much evidence as possible to show that their occupation meets the prescribed requirements. Applicants’ lawyers need to prepare the relevant documents and check the evidence to ensure applications are not made in vain.

Occupiers may not feel this is necessary if they have been on the land for a very long time without challenge but there is always the chance that another potential owner could challenge their use of, or presence on, the land.

Making an application and registering ownership is securing an asset. This means the land can then be fully and freely used at the will of the owner, so far as the law permits. For example it could be sold on, used as security for a charge or inherited without hindrance by a beneficiary.

Only a successful adverse possession application and subsequent registration of ownership at the Land Registry will fully protect an occupier’s interest in land and future-proof their ownership from challenge.

It is good practice that assets are secured, but this is particularly the case with adversely possessed land. While the upfront costs and time it takes to prepare an application may seem daunting, the benefits officially owning the land will be worth it with costs saved through the avoidance of any future challenges.

 


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The Regulation of Social Housing (Influence of Local Authorities) (England) Regulations 2017
Thursday 16th November 2017

These Regulations were enacted on 15 November 2017 and come into effect on 15 May 2018. They will have a profound impact upon stock transfer associations (though not ALMOs). They have come about as a result of the Government’s general drive towards deregulation and their specific desire to remove RP borrowing from its balance sheet.

In brief, the effect of the Regulations will be to:

  1. Limit the number of Local Authority nominee board members to 24% of the total number of board members.
  2. Remove any requirement that a Local Authority board member be present at a meeting of the board for that meeting to be quorate.
  3. Remove any Local Authority voting rights in its capacity as a shareholding member of the RP (their votes will be allocated pro rata amongst the remaining voting membership).

Whilst the Regulations themselves are refreshingly short and simple, their very brevity does perhaps give rise to certain questions:

  • What impact will these have on stock transfer agreements? The Regulations are stated to override any conflicting contractual requirements but presumably controls within a stock transfer agreement that a Local Authority may have which are not in its capacity as a shareholding member (e.g. consent over the sale of a property) will remain.
  • What about the situation where the Local Authority is not a shareholding member but its nominee board members are? The Regulations only refer to the Local Authority losing its voting rights. There is nothing within the Regulations about the nominee board member losing his or her voting rights. However, it seems a little odd that the nominee does not lose his or her rights but the Local Authority does.
  • The Regulations state that the Local Authority cannot continue to hold any voting rights in its capacity as a shareholding member. However, presumably that does not necessarily mean that it cannot remain as a non-voting shareholder of the RP.

We had hoped that these issues would have been addressed but they haven’t been. The Regulations will require stock transfer associations to review and in all likelihood make amendments to their constitutions to reflect these changes prior to 15 May 2018. Whilst the Regulations will automatically override contradictory constitutions, as a matter of best practice the constitutions ought to be changed themselves to avoid any uncertainty.

Should you have any queries concerning these Regulations or any other governance issues please contact Rupert Gill


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Access for repairs
Thursday 31st August 2017

We have successfully obtained an access injunction at trial over two days on 30th and 31st August 2017 in the County Court at Liverpool on behalf of Liverpool Mutual Homes (“LMH”) against a tenant pursuing a housing disrepair claim but failing to allow access for repairs to be completed.

LMH have been trying to complete repairs since February 2017 and have persistently been refused access by the tenant.

Prior to proceedings being issued:

  • LMH had sent four separate appointment letters, each with a revised timetable of works;
  • LMH’s contractors had attended at the property in accordance with pre-arranged appointments on five separate occasions, only to be denied access each time; and
  • The tenant’s solicitors had failed to respond to correspondence requesting access on six separate occasions.

The denial of access appeared to be based on legal advice that it was not necessary for the tenant to provide access unless and until all works of repair were agreed.

In his judgment, His Honour Judge Gregory rejected an argument advanced by the tenant’s Counsel that where there is any ‘tension’ between a landlord’s statutory and contractual right of access and the Housing Disrepair Pre-action Protocol (“PAP”) or Government Guidance on housing disrepair claims from 2002 (“Guidance”), that the PAP and Guidance took precedence.

The Judge did not accept that a tenant only had a right to provide access where all works of repair were agreed and commented that the PAP envisages situations where the full extent of work would not always be agreed.

The Judge also stated that:

  • LMH had, on numerous occasions, provided a clear and detailed schedule of works that was entirely consistent with the requirements of the PAP, despite the tenant arguing otherwise.
  • So desperate was LMH to have the tenant engage with them that photographs were taken hand delivering letters through the tenant’s door.
  • LMH, who is a social landlord, had acted in a “patient, proportionate and reasonable manner”, such that injunction proceedings were clearly issued as a last resort.

On this basis His Honour Judge Gregory granted a 12 month access injunction against the tenant and ordered her to pay £5,500 to LMH by way of costs.

This is the second injunction with a costs order that we have obtained on behalf of LMH in just over two weeks on similar facts. The tenant in each case was represented by Driscoll Kingston Solicitors and Counsel, David Bennett.


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