Can a Residential Landlord Get Possession of Their Property Right Now?

14th April 2020 Commercial Litigation

Quite early in the Coronavirus outbreak the government moved to increase the protection available to tenants. In part this was done by some changes to the Housing Act 1988 made in the Coronavirus Act 2020. I wrote about these at the time. However, the government was criticised at the time as this did not appear to protect tenants who were already facing eviction so it went further, making a Practice Direction which suspended all possession cases for three months until 30 October 2020 (although that could be extended) and automatically staying any possession case that was issued for the same three months.

However, this practice direction is subject to an important exemption as it specifically exempts any claim for an injunction, that is an order, usually a short-term one, which requires a person to do or not do something. This has raised the question of whether a landlord can obtain an injunction which requires a person to vacate a piece of land or not to trespass on it, thereby getting round the limitations of the Practice Direction. Undoubtedly this is an extreme remedy and should only be available in a limited number of cases but there are certainly cases where removal of a person from land, even in these difficult times, is the right thing to do.

And so it has proved as the High Court made an injunction last week to remove a person from a hospital room. Clearly this is a very special case. The person concerned (who the court identified only as MB) has serious mental health difficulties and was being offered care by Camden LBC. She was refusing to leave the hospital in order to take up this care. The hospital by contrast was keen to discharge anyone who could be dealt with elsewhere both because it needed the space and clinical staff to deal with Coronavirus patients and because it was removing anyone not in need of care in the hospital to reduce the risk that they might themselves become infected. The High Court reiterated the position that has previously been taken by the Supreme Court which is that a landowner can obtain an injunction to enforce their rights and, therefore decided to get around the limitations of the Practice Direction by making an injunction ordering MB to leave the hospital by a set date, not to impede any effort to remove her, and not to return to the hospital other than by an emergency admission in an ambulance.

So, what does this mean for landlords, can they do the same thing? Well, not exactly. First, the case was very unusual. MB was highly disruptive and abusive (largely due to her mental health conditions) and had been offered a suitable alternative place to stay. Also, she was not a tenant and was trespassing in the hospital as the implied licence that she had as a patient had been withdrawn. Clearly not every landlord is going to be in the same position. Most particularly, I cannot see that a landlord with an Assured Shorthold Tenant can do this as an AST does not end until a suitable court order is made and executed. At the end of a tenancy the tenant gets a new periodic tenancy and this process continues essentially forever until a court possession order is made and carried through. That would not allow for an injunction.

However, a landlord with a residential tenant who did not fall under the Housing Act 1988, a non-Housing Act tenant in the trade, could potentially obtain an injunction if that tenancy had been ended because the tenant would have lost their rights and would now be trespassing. Exactly the same position would apply for a licensor who had terminated a licence to occupy a room in their own house or a room in shared multi-occupancy accommodation (assuming it was a real licence of course and not a sham). Likewise there is no reason why a Housing Act 1988 landlord could not obtain an injunction to enforce rights set out in the tenancy agreement, so to allow for access if urgently required or to restrain anti-social behaviour.

As I have already said these are extreme cases and any landlord looking for an injunction would have to show a very real need why they required removal of an occupier on an urgent basis. However, the High Court has clearly indicated that it can be done in those rare cases where action is required.

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David Smith is a Partner located in Londonin our Commercial Litigation department

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