The new procedure for evictions from local authority housing under the Housing (Miscellaneous Provisions) Act 2014

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1 The new procedure for evictions from local authority housing under the Housing (Miscellaneous Provisions) Act 2014 New procedure for eviction into effect on 13 April 2015 The new procedure for eviction from housing authority accommodation was brought into effect on 13 April Background to new procedure This procedure replaces the procedure that had been in place under s62 of the Housing Act 1966 (the s.62 procedure). The Supreme Court in Donegan v Dublin City Council (unreported, Supreme Court, 27 February 2012) held that the s.62 procedure was in breach of Article 8 of the European Convention on Human Rights. In doing so, the Supreme Court upheld the High Court decision in the case. In the High Court, Laffoy J had issued a declaration of incompatibility under s 5 of the European Convention on Human Rights Act 2003, holding that s. 62 was incompatible with Article 8 of the European Convention on Human Rights. It was incompatible, the Court held, as the procedure allowed a tenant to be evicted without the possibility of any independent review where there was a factual dispute between the parties as to whether the tenancy had been properly terminated. Key aspects of new procedure There are many welcome aspects to the new eviction procedure - the new procedures are fairer and more proportionate. Tenancy warning Under the Act s procedures, in most cases, possession will be a last resort, when less drastic measures have failed. In most cases, a tenancy warning must be given to tenant to warn them to stop carrying out actions that are in breach of their tenancy. The tenancy warning provisions apply to breaches of the tenancy agreement. If they do not comply, the housing authority can apply to the District Court for a possession order (ss 7-9 of the Act). In cases of extreme breaches of a tenancy agreement the housing authority may proceed straight to a possession application without giving a Tenancy Warning. Review of tenancy warning The Act provides for an internal review procedure for a tenancy warning, where a tenant does not accept that a breach has occurred (s 10). The reviewer is independent in his functions and can 1

2 affirm, vary or nullify a warning. The reviewer must assess the proportionality and reasonableness of a tenancy warning and must act in accordance with fair procedures. Eviction A housing authority may apply to the District Court for a possession order where: a tenant or a member of his or her household breaches a tenancy agreement or rent related obligation (s 12) an occupier is in occupation of a housing authority dwelling where there is no tenancy in the dwelling (s 13) an occupier is in occupation of a housing authority dwelling where the tenancy has ended as the tenant has died (s 17). The District Court must make a possession order if it appears to the Court that (ss 12 (9), 13(8) and 17(8)): the housing authority has grounds for the recovery of possession, recovery of possession by the housing authority is a proportionate response to the occupation of the dwelling by the person concerned, and it is reasonable having regard to all the circumstances of the case to make the order. Where a tenant has abandoned the housing authority dwelling, the authority can recover possession without going to the District Court but must comply with notice requirements set out in the Act (s 15). The occupier can challenge this in the District Court (s 16). Overview of new procedure This note gives an overview of the new procedure and considers some potential problems with the operation it. Tenancy warning (ss 7 to 9) A housing authority can issue a tenancy warning where, in the opinion of the authority, the tenant or a member of his or her household has breached a specific term of the tenancy agreement. The possible grounds for a tenancy warning are: Anti-social behaviour ground (s 7): Breach of a term of the tenancy that prohibits: o anti-social behaviour; o o nuisance or conduct likely to cause annoyance or disturbance to neighbours; or the tenant from knowingly permitting a person, against whom an excluding order is in force, to enter the dwelling in breach of the excluding order (or interim order). Rent arrears ground (s 8) A housing authority may issue a tenancy warning to a tenant in breach of a rent related obligation. A rent related obligation means an agreement requiring payment on the due dates of the amount of rent determined under the Housing Acts. Breach of other terms of the tenancy (s 9) In this note, this is referred to as the Other breach ground. Contents of tenancy warning To be a valid tenancy warning, the warning must set out certain information. The detail of what must be set out in the tenancy warning is summarised below. 2

3 Where the tenancy warnings is on the anti-social ground or other breach ground, in setting out the basis for a tenancy warning the housing authority shall have due regard to protecting the identity of people informing it of the breach in circumstances where, in the opinion of the authority, not to do so could render the person or people associated with them, liable to violence or threats. Tenancy warning on anti-social behaviour ground: contents A tenancy warning on this ground must set out the basis for its issue and the reason for its issue. The warning must (s 7(3)): State the specified term which the authority alleges has been breached The nature of the breach, including the name of the household member (if available) who caused the breach, the occasion of the breach and, where relevant, the significant or persistent detrimental effect of the breach on the quality of life of those in the locality. Require the tenant to ensure that the member who caused the breach does not repeat specified actions or undertake specified actions in order to prevent the detrimental effect of the breach occurring. Indicate that if the breach continues during, or is repeated within 12 months of the warning coming into effect, then the authority may either apply to the District Court for repossession under the Act or apply to the District Court for an excluding order. Indicate that the authority may during the period of 3 years after the warning comes into effect, take the warning into account in deciding to refuse to allocate a dwelling or defer the allocation of a dwelling to the tenant or the household member indentified in the tenancy warning or in deciding on the sale of a housing authority dwelling to the household member or tenant; and Set out the tenant s rights to request a review of the tenancy warning. Tenancy warning on rent related obligation ground: contents A tenancy warning on this ground must (s 8(2)): Set out the basis for the tenancy warning and the rent related obligation breached, the amount of rent arrears and the period during which the amount was not paid. Outline any prior occasion in the preceding 5 years where the tenant or a member of his household was in breach of a rent related obligation and the position as regards the payment of the rent arrears involved; Require the tenant to pay the arrears immediately or, where such payment would cause undue hardship, to contact the housing authority to enter a rescheduling arrangement in respect of the rent arrears; Indicate that if, within two months of the warning coming into effect: o The rent arrears have not been paid to the authority or o Rescheduling arrangements have not been entered with the authority Then the housing authority may, unless during that period the parties enter into a rescheduling agreement, apply under s 12 to recover possession. Indicate that even if the rent arrears are paid by or on behalf of the tenant within two months of the tenancy warning coming into effect, if in the 12 month period following the tenancy warning coming into effect there is a failure by or the tenant to pay the rent on the due date, then the housing authority may, except where, during that period, the authority and either or both the tenants and other members of his household enter into rescheduling agreements for payment of the rent arrears, apply under s 12 to recover possession without issuing a further tenancy warning. 3

4 Indicate that, where the household enters into a rescheduling agreement and fails to make a payment on a due date, the authority may apply for possession under s 12 without issuing a further tenancy warning, except where the authority is satisfied that the failure to make a payment is due to circumstances outside the households control and the tenant enters into revised rescheduling arrangements for payment. Set out the tenant s right to request a review of the tenancy warning, and Where the housing authority is aware or suspects that the tenant has debts in relation to rent arrears, set out information where the household can obtain debt advice and assistance. Tenancy warning for breach of other terms of agreement: contents A tenancy warning on this ground must (s 9(2)): Set out the basis for the warning and the term which has been breached, the nature or the breach and when it happened, and the name (if available) of the person who caused the breach. Require the person causing the breach to cease or desist specified actions or to take specified actions to prevent the breach reoccurring. Indicate that if the breach continues in the period of, or is repeated within, 12 months of the tenancy warning coming into effect the authority may apply under section 12 for possession of the dwelling without issuing a further tenancy warning. Set out the tenants rights under section 10, to request a review. Review of Tenancy Warning Section 10 provides for an internal independent review procedure for a tenancy warning, where a tenant does not accept that a breach has occurred. A tenant may request in writing a housing authority to review a tenancy warning issued to him (s 10(2)). A review request must (s 10(3)): Outline the grounds upon which the tenant disputes the basis for the warning and be accompanied by any relevant supporting documents; and State whether the tenant or a member of his household wishes to make oral representations to the housing authority as part of the review. Time limit for requesting review within ten working days from issue of warning A review request must be received by the housing authority within ten working days from the issuing of the warning to the tenant (s10(4)). However, the Minister may prescribe the types of extenuating circumstances which will allow an extension of this time limit (s10(5)). If the Minister does this, when a tenant applies for such an extension of time, the chief executive of the housing authority concerned, at his/her discretion, upon being satisfied that such circumstances do apply, can grant an extension of up to another ten working days. Adjudication of review reviewer appointed by chief executive officer of the housing authority must have had no involvement in issuing of warning When the chief executive receives a request for a review, the chief executive must appoint as the reviewer of the warning an officer of employee of the housing authority who (s10(6)): 4

5 Was not involved in the decision to issue the tenancy warning; and Is higher in rank than the officer or employee who decided to issue the warning. Obligations and powers of reviewer The reviewer (ss 10(7), 10(8), 10(9)): Must decide the decision to issue a tenancy warning as if the matter were being decided for the first time and on the basis of information presented to her/him; May make such enquiries and meet with any person, including the tenant, a household member and a member of An Garda Siochana that she/he considers it appropriate to meet; and Except where the reviewer and tenant otherwise agree in writing, the reviewer must make a decision on the review within 20 working days of his appointment, or, within 30 days where: o the tenant or household member wishes to make oral representations; o the reviewer wishes to meet the tenant as part of the review; or o the tenant proposes a variation to the warning or is given the opportunity to comment on a variation proposed by the reviewer. A tenant may withdraw a review request but the reviewer can decide to continue with a review if she/he considers it in order to do so (s 10(12). Where a member of An Garda Siochana or an officer of a housing authority states that he or she believes that a person is or has been engaged in anti-social behaviour, then, if the reviewer is satisfied that there are reasonable grounds for such a belief and that another person would be deterred or prevented by violence, threat or fear from providing evidence in that regard, the reviewer may accept that statement as evidence of such anti-social behaviour (s 10 (14)). In carrying out the review, the reviewer and housing authority must have due regard to protecting the identity of people informing the authority or reviewer of the breach where, in the opinion of the authority or reviewer, not to do so (s10(15)): could render that person or people associated with the person liable to violence, threat or fear as a consequence of so informing, or might otherwise have prevented those persons from so informing because of such violence, threat or fear. The decision on review A decision on a review request must (s 10(10): Confirm the tenancy warning; Vary the tenancy warning in specified terms. No variation, other than a clerical or nonmaterial one, can be made without first giving the tenant an opportunity to comment on it or make representations on it (s 10(11); or Annul the tenancy warning, and must state the reasons for doing so. The housing authority must send a copy in writing of the reviewer s decision and reasons to the tenant. 5

6 Proceedings for Possession Section 12 Proceedings for possession of housing authority dwelling for breach of tenancy agreement, including anti-social behaviour, or breach of rent related obligation Section 12 provides that where a tenant or a member of his or her household breaches a tenancy agreement or rent related obligation, the housing authority may apply to the District Court for a possession order. The housing authority may make this application even if there is in progress a review of a tenancy warning on those grounds and that is of a similar nature to which the possession application relates ( a separate tenancy warning review ). Notice of proceedings at least ten working days A housing authority must, not less than ten working days before the hearing by the District Court of a possession application, give the tenant notice in writing of (s 12 (3)(a)): The intention to make the application; The information to be included in the application; and The date on which the authority intends to make the application. However in a case where the housing authority is satisfied that the breach of the tenancy agreement on which the proceedings are based has had or is having a significant or persistent detrimental effect on the quality of life of those in the locality of the dwelling, the authority must, not later than at the time it makes the possession application, give a copy of the possession application to the tenant (s 12 (3)(b)). Contents of possession application A possession application must set out (s 12 (4)): The grounds for the application: o The term of the tenancy agreement or rent obligation that is alleged to have been breached; o The nature and time of the breach including the name of the person (where available) who caused the breach; and o If relevant, the significant or persistent detrimental effect of the breach on the quality of life of those in the locality of the dwelling; Where any housing authority previously issued a tenancy warning to the tenant within the five years before the application: o The terms of that warning; and o The outcome of any request for review, irrespective of whether or not the breach was of a similar nature to the breach to which the possession application relates; Where the housing authority did not issue a tenancy warning in relation to the breach to which the application relates, a statement as to why the authority did not do so. Whether or not a separate tenancy warning review is taking place, and if it is, a statement as to why the authority is seeking the possession order while the separate tenancy warning review is taking place. The grounds for the possession application may be provided by information on oath by an employee or officer of the authority authorised to give that information and shall form part of the possession application and be served on the tenant in the possession application. 6

7 District Court proceedings Non-appearance by tenant Where a tenant does not, without due cause, appear at the hearing of the possession application, the District Court can, where it is satisfied that there is a prima facie case for doing so, grant an order in the terms sought by the authority (s 12(7)). Possible adjournment The District Court can, however, adjourn proceedings for a period fixed by the Court, with or without imposing conditions as to the conduct of the tenant or a household member, including re rent payment. Possession order District Court considerations The District Court must make a possession order if it appears to the Court that (s 12 (9)(a)): the housing authority has grounds for the recovery of possession; and that it is reasonable having regard to all the circumstances of the case to make the order. In considering the reasonableness of making a possession order, the District Court must have regard to the following (s 12 (9)(b)): the steps taken by the housing authority to secure the cessation or non-repetition of the breach, including the issuing of any tenancy warning; the response of the tenant to any such steps taken by the authority; the effect, if any, that the breach had or is having on the quality of life of those in the locality; whether in the circumstances it is just and equitable to make the order even though: o the housing authority did not issue a tenancy warning in respect of the breach of the tenancy agreement; o a separate tenancy warning review is in progress; or o the housing authority did not give ten days notice in relation to the possession application. the proportionality of making a possession order having regard to the grounds for the possession application. The Court can, if it is satisfied that it is desirable, hear some or all the possession case in camera (s 12 (11). Where a possession application is grounded on anti-social behaviour by a household member other than the tenant, the Court may, as an alternative to granting the possession application, deem it an application for an exclusion order. Contents of possession order A possession order must specify the commencement date and the length of the period during which the housing authority has the right to possession. This period must not be less than two months or more than nine months. The order shall have the effect of terminating the tenancy on the date the housing authority recovers possession of the dwelling. 7

8 Section 13 Proceedings for possession against person in occupation of housing authority dwelling (non-tenant) Section 13 applies to possession proceedings where: there is no tenancy other than where the tenant has died; or a dwelling that has been abandoned by the tenant and the dwelling is illegally occupied by another person. The housing authority in these instances may apply to the District Court for a possession order. The possession application must set out the grounds for the application and where the occupier applied to become the lawful tenant, the basis of the refusal (s 13(2)). In setting out the grounds for a possession application, the authority must have due regard to protecting the identity of persons who informed the authority of the occupation. Notice of hearing at least ten working days notice A housing authority must give at least ten working days notice in writing before the hearing of a District Court of a possession application (s 13(4)). The authority must give this notice to the person the authority has reasonable grounds for believing is in occupation. The notice must be addressed to that person or if there is doubt to their identity, to the occupier. Contents of notice The notice must include in writing (s 13(4)): the intention of the authorities to make an application; the information to be included; and the date on which the authority intends to make its application. District Court Proceedings Where the person in occupation does not, without due cause, appear at the hearing for possession, the District Court may, where it is satisfied that there is a prima facie case for doing so, grant an order in the terms sought by the authority (s 13(6)). The Court may however adjourn proceedings for a period fixed by the court. The District Court must make a possession order if it appears to the Court that (s 13(8)): the housing authority has grounds for recovery of possession; recovery of possession is a proportionate response to the occupation; and it is reasonable having regard to all the circumstances of the case to make the order. Offence of using or occupying dwelling where no tenancy or where dwelling has been abandoned Section 13 (14) provides that is an offence to enter, use or occupy a dwelling in which there is no tenancy or which has been abandoned. The penalty does not apply to a person: who was ordinarily resident in the dwelling when the tenancy last created in the dwelling ceased to exist; who was ordinarily resident at the time the dwelling was abandoned by the tenant; or making an entry into the dwelling in the course of his or her ordinary business, profession, vocation or trade or for the purpose of normal social relations. 8

9 Section 15 Proceedings for repossession of abandoned dwellings If a housing authority wants to take possession of a dwelling that has been abandoned, it must serve notice on the tenant. The authority does not have to take proceedings in the District Court to repossess in these circumstances. Contents of notice The notice must: State that the authority has reason to believe that the dwelling is unoccupied and that the household does not intend to occupy it as its normal place of residence; Require the tenant to inform the authority within four weeks of service of the notice if the household intends to occupy the dwelling as its normal place of residence; Advise the tenant that if at the end of the four weeks: o the tenant has not so informed the authority that it intends to occupy the dwelling as its normal place of residence; and o it appears to the authority that the dwelling is unoccupied and that the household does not intend to occupy it as its normal place of residence, the authority will serve a further notice bring the tenancy to an end with immediate effect. Where the tenancy agreement has been so terminated, the housing authority is entitled to take possession without any further proceedings (s 15(3)). In taking possession of the dwelling the authority must secure the safe custody and delivery of any property found in the dwelling that does not belong to the authority but before that property is delivered, the authority may require the former tenant to pay to it the reasonable cost of storage and delivery. Return of property Where the owner of the property does not make attempts to have his property returned after two months of receiving notice, the authority may sell the property of the tenant and use the proceeds to meet costs incurred by the authority, in a set order of priority, as set out in the section (s 15(5)). Where the authority is satisfied that certain property belongs to another non-tenant the authority must take all reasonable steps to identify the owner and return the property to the owner. This is subject to the authority s discretion to recover some or all of the cost of removing and storing the property. Section 16 Proceedings for recovering a dwelling repossessed under section 15 action by tenant of abandoned dwelling Section 16 provides that a person who was a tenant of a dwelling terminated under s 15 and who is aggrieved by the termination may apply to the District Court within six months of the termination. If the District Court finds: that the housing authority did not comply with notice requirements of s 15; or did not have reasonable grounds for finding that the dwelling was abandoned; or that the authority was in error in finding that the applicant did not intend to occupy the dwelling as his normal place of residence and that the applicant had reasonable cause, by illness or otherwise for failing to notify the authority of his intent to reside; the Court must: if the dwelling has not been let to a new tenant, declare the notice of termination to be of no effect; or 9

10 if there is a new tenant direct the authority to allocate to the former tenant another suitable dwelling in the same locality. Section 17 Proceedings for recovery of a dwelling after death of a tenant Section 17 applies where there is no tenancy due to the death of a tenant and where the dwelling is occupied by a member of the deceased tenant s household who is not entitled to succeed on the tenancy. The procedures applicable are essentially identical to those in s.13. Analysis of the New Procedures for Tenancy Warnings and Possession The new provisions for possession are, on balance, a welcome improvement on the repealed s.62 procedure. The new provisions are manifestly more proportionate and reasonable. Tenancy warning fairer notice The provision of a tenancy warning system is particularly welcome and demonstrates that an application for possession is, under the Act, intended to be a measure of last resort. The explanatory memorandum accompanying the Act states that a tenancy warning will normally precede a possession application. 1 The tenancy warning also clearly enjoins the authorities to observe fair procedures in serving the warning and effectively detailing the particulars of the allegations. Tenancy warning review fairer system but very narrow window to request review The housing authority must inform the tenant of his rights to an internal review under s 10. It is essential that the information clearly outlines what the tenant must do to in order to initiate such a review and that he is entitled to make oral representations. The provision of clear and detailed information is particularly crucial as a request generally must be issued within ten days of a warning being issued. The ten day window in which to request a review is quite narrow given the seriousness of the issues at stake and the consequences of a tenancy warning. The Minister is entitled to prescribe the types of extenuating circumstances as a consequence of which the period of ten working days may be extended. However, under the Act, even if it can be shown that extenuating circumstances exist, the decision to provide an extension to request a review is at the discretion of the chief executive of the housing authority concerned (s 10(5)). The independent review mechanism is a crucial measure to safeguard the ECHR Article 8 rights of those affected by a tenancy warning. The Act allows a member of the housing authority independent of the initial decision to decide whether to affirm, vary or nullify a warning the matter based on the evidence before him. The reviewer is obliged to consider the written or oral representations of the tenant or members of their household as well as the views of the Gardai or authority employees. The concepts of fair procedures and impartial review are central to the process. Belief of Gardai or housing authority must be independently assessed by reviewer as to whether reasonable grounds for belief Section 10 (14) may be a problematic provision in practice. It states that where a member of the Gardai or housing authority states that he believes that a person is engaged in anti-social behaviour then if the reviewer is satisfied there are reasonable grounds for such belief and

11 that another person would be deterred from providing evidence in that regard, a reviewer may accept that statement as evidence of anti-social behaviour. Properly construed, this provision mandates that the reviewer must independently scrutinise the basis of the evidence presented to him. A reviewer must not fetter his own discretion by relying presumptively on the testimony of the Gardai or authority worker as to their beliefs. The reviewer must be satisfied that it is reasonable and even then he is not obliged to accept it as evidence of anti-social behaviour. Notice of District Court proceedings for possession very short ten working days or in some instances only at time of making application A Housing Authority must not less than ten working days before the hearing by the District Court of a possession application; give the tenant notice in writing of all relevant details related to the proceedings. This window of notification is relatively narrow. However, in some cases the Act allows housing authorities to narrow it even further. The Act states that in a case where the housing authority is satisfied that the breach of the tenancy agreement to which possession relates has had or is having a significant or persistent detrimental effect on the quality of life of those in the locality of the dwelling, the authority shall, not later than at the time it makes the possession application, give a copy of the possession application to the tenant (s 12 (3)(b)). This applies to proceedings for possession of a housing authority dwelling for reach of a term of the tenancy agreement or rent related obligation. This provision may present very real practical problems for the individuals and families subjected to a possession application. This is particularly so given the complexity of the proceedings and the fact that legal aid is not available in cases concerning an interest over land. No provisions as to when local authority can take proceedings to repossess without first giving tenancy warning Another difficulty raised by the Act is that it does not demarcate clear guidelines for when an authority may dispense with issuing a tenancy warning and proceed straight to a possession application. The explanatory memorandum states that while a tenancy warning will normally precede 2 a possession application, where a housing authority decides that the seriousness of the breach justifies dispensing with a warning it may proceed straight to a possession application. 3 However, the Act does not set out criteria for the authority to consider when deciding whether to proceed straight to the more drastic possession application in place of first issuing a tenancy warning. The discretion the authority has with regard to which remedial action they wish to take is checked by the review powers of the District Court under s 12. The section states that Court shall have regard to the proportionality of making a possession order having regard to the grounds for the possession application (s 12 (9)). Where the authority proceeds without issuing a tenancy warning or where it proceeds when a tenancy warning is under review, the District must also consider whether in the circumstances it is just and equitable to make the order (s 12(9)). This may, in practice, offer a suitable counterweight to the discretion afforded to the authority. The Court may place great stock on a failure to take less drastic measures in their assessment of whether

12 granting an order is proportionate. This will hopefully ensure that opting for a possession application as a first port of call will be limited to instances of the most egregious kinds of anti-social behaviour. To do otherwise would arguably be in breach of ECHR Article 8 jurisprudence. Court power to grant application for possession where prima facie case where person in occupation does not attend hearing without due cause Section 12 (9) requires that a Court shall make an order if it is satisfied that it is reasonable having regard to all the circumstances and having regard to the detailed criteria in s 12(9). Among these criteria is the requirement that an order be proportionate. However s 12(9) is said to be without prejudice to s 12(7), which states that where the person in occupation does not, without due cause, appear at the hearing for possession, the District Court may, where it is satisfied that there is a prima facie case for doing so, grant an order in the terms sought by the authority (s 13(6)). This appears to allow the District Court, in certain instances, to avoid an assessment of the reasonableness and proportionality of a possession application where a person in occupation misses a hearing without due cause and where the authority has a prima facie case. Considering the potentially enormous adverse consequences which may stem from a possession application, this is a potentially powerful provision. It appears that the exercise of this significant power not limited in any clear manner. It is not clear what would constitute due cause. It is important to note that the Court has the power to adjourn the hearing for another time. Disclaimer While every effort has been made to ensure the accuracy of this information, it is provided for general legal information only and is not intended as a substitute for legal advice. MLRC does not accept any legal liability for the contents of this leaflet. A person with specific legal problems should consult a solicitor. 12