Tenant Found in Breach of Lease Covenant Causing Nuisance

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00AJ/LBC/2019/0033 Property : [ADDRESS] [POSTCODE] Applicants : [redacted] :

[NAME] [COUNSEL] (Counsel) Respondents :

[redacted] :

In person

Type of Application : Determination of alleged breach of covenant – section 168(4) Commonhold and [NAME] 2002

Tribunal Members : Mr [NAME] Mr [NAME] Date and venue of hearing : 15th August 2019 at 10 [ADDRESS] [POSTCODE]

Date of Decision : 22 August 2019

DECISION

1. The Tribunal determines that for the purposes of section 168(4) of the Commonhold and [NAME] 2002, a breach of the lease has occurred in that the Respondent has caused:

2 (i) nuisance; (ii) annoyance; and (iii) inconvenience to the landlord, the tenants of the landlord and neighbouring owners of the premises.

The Application 1. By an application issued on 25 April 2019, the Applicants seek a determination under section 168(4) of the Commonhold and [NAME] 2002 (“the Act”) that the Respondent tenant is in breach of is lease in respect of [ADDRESS] [POSTCODE] (“the property”) in that he has caused nuisance or annoyance or inconvenience to the landlord or the tenants of the landlord.

2. On 23 May 2019, the Tribunal gave Directions: (i) The Applicants’ Statement of Case is at p.1-76 of the Bundle. (ii) The Respondent did not abide by the Directions and provided no written submission to the Tribunal or supporting information.

3. At the Hearing held on 15th August, the Applicants were represented by [NAME] [COUNSEL] [NAME] instructed by [NAME] Legal Department. The Respondent represented himself. We are grateful to the assistance provided by Counsel at the hearing. The Law 4. Section 168 of the Act provides as follows: (1) A landlord under a long lease of a dwelling may not serve a notice under section 146(1) of the Law of Property Act 1925 (c. 20) (restriction on forfeiture) in respect of a breach by a tenant of a covenant or condition in the lease unless subsection (2) is satisfied.

(2) This subsection is satisfied if –

(a) it has been finally determined on an application under subsection (4) that the breach has occurred;

(b) the tenant has admitted the breach; or

(c) a court in any proceedings, or an arbitral tribunal in proceedings pursuant to a post-dispute arbitration agreement, has finally determined that the breach has occurred.

3 (3) But a notice may not be served by virtue of subsection (2)(a) or (c) until after the end of the period of 14 days beginning with the day after that on which the final determination is made.

(4) A landlord under a long lease of a dwelling may make an application to the appropriate tribunal for a determination that a breach of a covenant or condition in the lease has occurred.

5. This Tribunal is asked to determine whether the Respondent has breached the term of his lease. It is not for this Tribunal to consider whether another Court might grant relief from forfeiture. The Lease 6. The lease is dated 1 February 1989 (at p.37). The tenant covenants at clause 3(9): “not to use the demised premises other than as a private residence nor to do or permit or suffer to be done in or upon the property or any part thereof anything which may be or become a nuisance or annoyance or cause damage or inconvenience to the Landlord or the tenants of the Landlord or neighbouring owners or occupiers or whereby…” The Hearing 7. The Tribunal asked Mr [NAME] why he had not complied with the Directions and in particular the requirement to provide the Tribunal with a Statement of Case. He explained that he had understood the Directions and particularly Section 4 (p.12-15) which required him to provide his Defence against the Applicants allegation that he had breached his lease covenants.

8. He told the Tribunal that his command of written English was inadequate to convey the detail of his response. He had enquired at a legal support service but had been unable to secure free legal advice. He therefore did not submit any written evidence.

9. The Tribunal explained to the Applicant the purpose of the application and particularly Section 5 of the application (p.4 & 8) which refer to the lease covenant and the alleged breaches of that covenant. He said he understood what was being alleged and he agreed to respond verbally to each of the allegations.

10. The Tribunal received the evidence of Mr [NAME], [COMPANY], [NAME]. He referred to two written statements submitted to Tribunal during his oral evidence. These is a witness statement from [NAME] dated 12 May 2019. She had attended at the property on a [NAME] of occasions after complaints from

4 neighbours. A second witness statement was submitted by the property Caretaker, [NAME] [NAME] which detailed alleged further anti-social behaviour by Mr [NAME] at the property and corroborated breaches reported in the Statement of Case. 11. [NAME] and [NAME] did not appear in person at the hearing. The Evidence 12. The Applicants Statement of Case lists seventeen alleged breaches of the covenant. These are listed at p.29-31 of the Bundle.

13. These seventeen events can be divided into four clusters of anti-social behaviour; namely: (i) In March 2018 through to April 2018 the tenant is alleged to have been taken away by the Police after drinking, shouting and swearing on three occasions at the property. (ii) In October 2018 it is alleged that the tenant was found banging doors on the eighth floor, causing mess on the landing outside [NAME] 67, and tried to force his way into a nearby property on the same floor. The statement by [NAME] described the behaviour and verified they had taken place. When questioned by the Tribunal the tenant confirmed that the Police had attended the Property and these events had taken place. (iii) At or around late 2018 through to the end of January 2019 a series of anti-social events took place on the landing where the property is situated. It is alleged nearby flats numbers 65, 66 and 67 suffered damage from liquid thrown at the doors or walls, and the tenant was apparently seen drunk on the landing on a [NAME] of occasions whilst the smoke alarm in the property was going off. (iv) Finally, between 22 March and the 25 March 2019 neighbours of the Respondent described his behaviour as “unbearable” and further substances were thrown at nearby properties.

14. The witness statement from Mr [NAME] [NAME] described an occasion in March 2019 when he and his colleague were harangued after an unannounced visit at the tenant’s property. It is alleged that the tenant was shouting and swearing. The Tribunal confirmed with the tenant that he did shout and swear at the [NAME] representative.

15. The tenant submitted to Tribunal a letter purportedly written by the occupants of [NAME] 65 although it was not signed but dated October 2018. This letter said that the noise and disturbance was being caused by the

5 occupants of [NAME] 67 who were described as a “large family” rather than Mr [NAME] at [NAME] 64.

16. The written evidence submitted by the [NAME] [NAME] (p.23-27) corroborates the alleged breaches reported by [NAME] and Mr [NAME]. At Section 7 of her statement she alleges “the contents of ashtrays and rubbish including torn up paper was being thrown down the stairs. I thought that this was being done by the Respondent and so I placed a leaflet through his door, which I knew would not have been sent to any other residents. Within minutes I found this leaflet ripped up and thrown down the stairs.” She also said that “in addition to throwing items down the stair the Respondent has also been seen throwing glass beer bottles from his eighth floor flat window down onto the street below.” 17. The tenant Respondent refutes all these allegations accept those made by the Police Officer. He accepted these on questioning by the Tribunal. Our Determination 18. The Tribunal are asked to determine whether there is sufficient evidence to confirm a breach of the covenant has taken place. The covenant requires a tenant not to cause nuisance or annoyance to the Landlord, tenants or neighbouring owners.

19. The tenant accepted the content of the witness statement submitted by [NAME] (p.18-19). This confirms that on a [NAME] of occasions he shouted down the line to the police call handler. He also accepted that in October the Police received a telephone call from a member of the public who said “that the male in 64 Highview was going mad, slamming doors and swearing inside his flat.” The Police statement also confirms that a nearby resident was suffering verbal abuse from the occupant of 64 and that he caused damage to the neighbours door. Police attended on that occasion. The tenant when questioned said that he had been taken away by the Police on or around the 25 March 2018. The Tribunal are content that on these occasions the tenant caused nuisance to tenants or occupiers or owners in the property.

20. The witness statement provided by the [NAME] from [NAME] alleged that the tenant had been aggressive and threatening in his behaviour when he called at the premises on the 17 March 2019. The [NAME] claims that he and his colleague were so threatened that they left the premises. The Tribunal accept this statement as accurate. Such behaviour is unacceptable and would cause annoyance or inconvenience to the Landlord or their representatives.

21. The tenant refuted all the allegations made by the landlord and caretaker. He accepts the witness statement made by the [NAME] is accurate. His defence was that there was no photographic evidence of him being abusive

6 or carrying out any of the alleged vandalism. The letter purported to be from the occupants of [NAME] 65 was not signed and had no name other than a printed “[NAME]” at the end of the letter. It is for this reason that the Tribunal give this evidence little weight.

22. After deliberation the Tribunal determine that there is sufficient evidence to support the allegations of anti-social behaviour on some or all of the seventeen occasions listed at Section 7 of the Application and in the Statement of Case (Paragraphs 8-23, p.29-31).

23. We are satisfied that the evidence provided by a [NAME] of different and independent parties is adequate to substantiate that nuisance and annoyance was caused to the Landlord, tenants and neighbouring owners of the property. It is for this reason that the Tribunal determine that a breach of covenant has taken place. Discretion 24. The Tribunal is aware that they have discretion to make a determination that a breach of covenant has occurred. They are cognisant of the lack of legal advice received by the tenant. At the Hearing every effort was made by Counsel and Tribunal to ensure that the implication of the allegations was understood. Each allegation was put to the tenant and both Counsel and Tribunal asked for his response. It is on the basis of responses from the detailed and comprehensive enquiry of the tenant that this decision is made.

25. The Directions issued on 23rd May 2019 by Tribunal emphasised the importance of the tenant obtaining legal advice about this matter. We would reiterate this advice.

Name: [NAME]: 22 August 2019

Valuer Chairman

7

RIGHTS OF APPEAL

1. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) then a written application for permission must be made to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The application for permission to appeal must arrive at the Regional office within 28 days after the Tribunal sends written reasons for the decision to the person making the application.

3. If the application is not made within the 28 day time limit, such application must include a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed despite not being within the time limit.

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates (i.e. give the date, the property and the case [NAME]), state the grounds of appeal, and state the result the party making the application is seeking.