Tuesday, November 30, 2021

Tenants told don't be rude about Councillors or face eviction!


I must admit that this article from "Nearly Legal" made me smile. Not that abuse and harassment isn't a serious issue in housing but having a tenancy condition saying you cannot be "derogatory" (showing a critical attitude and lack of respect for somebody towards Councillors is just daft and legally unenforceable. 

"They're making a list, they're checking it twice*

Author: Giles Peaker


Sandwell Metropolitan Borough Council are proposing to amend their tenants’ secure tenancy agreements. Unfortunately, in their wisdom, they have decided to include a new tenancy condition as follows:

“You, people living with you and any visitors to your property must not use social media or any other form of communication to make false statements, abuse, threaten, harass or be derogatory towards Council employees, contractors, agents or councillors”

The explanatory document confirms the purpose of this condition, it is about:

Sandwell explanation

“Being clear that the Council will take action where social media is used to threaten, harass, abuse or make false statements towards Council employees, contractors, agents or councillors”.

Oh. Oh dear. Let’s start with the infelicitous drafting, which would appear to make it fine to make derogatory or ‘false’ statements about council employees or councillors, so long as the statements are not directed at (‘towards’) them.

And then, ‘false statements’? How is that to be established? Would the Council have to establish that the tenant/householder member/visitor made the statement knowing it was false (or at least being reckless as to whether it was false)? That is quite the evidential burden…

But there is the broader problem with the clause, which is its scope.

Just to be clear – in case that was needed –  no council employee, contractor, agent or indeed councillor should be threatened, harassed or abused. If that happens while they are doing a housing management role, there is already a perfectly good ground of possession – Housing Act 1985 Schedule 2, Ground 2(aa)

The tenant or a person residing in or visiting the dwelling-house— (…)

(aa) has been guilty of conduct causing or likely to cause a nuisance or annoyance to the landlord of the dwelling-house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord’s housing management functions, and that is directly or indirectly related to or affects those functions, (…)

But Sandwell’s clause is not limited to conduct in relation to the council’s housing management function. It seeks to make a tenant liable – as a condition of tenancy – for, as an example, a visitor to their home making a ‘false statement’ about a councillor. (Quite how a social media statement by a visitor could be tied to the tenant’s tenancy is another evidential question, but hey ho).  This, I think, very clearly extends beyond anything specifically tenancy related.

Those of us who’ve been doing this a few years have seen this before – attempts to use tenancy conditions to regulate behaviour unconnected with the property or the tenancy. There was, in particular, Wandsworth LBC’s tenancy condition attempting to make a tenant liable for any anti social behaviour committed by the tenant, their household or their visitors anywhere in the borough. That came to grief, quite rightly, the first time Wandsworth attempted to use it by bringing a claim for breach of tenancy conditions under ground 1 Housing Act 1985. The condition was ‘not an obligation of the tenancy’.

Aside from Sandwell’s dreadful drafting, there is this broader point – tenancy conditions should relate to the tenancy, the property and the locality. Imposing a general obligation not to be rude to councillors (on social media or otherwise) is not a tenancy related condition. I would fully expect it to be unenforceable by possession proceedings as being a personal obligation, not an obligation of the tenancy.

There are various other remedies available where council officers or councillors are being abused, threatened or harassed outside of the context of a housing management function. These should be used where necessary. Just don’t make the ineffective gesture of putting it in a tenancy agreement. That is not the place for policing behaviour in general.

*Too soon?

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