Breach of tenancy injunctions –When can these be without notice?

Breach of tenancy injunctions are well known and are a commonly used tool for social housing providers in situations where there is an issue with adherence to the terms of the tenancy agreement.

These can feature a variety of issues including access problems for regulatory inspections, property condition issues and breach of planning issues to name a few. They are commonplace and often feature as an on-notice application, i.e., one whereby the defendant tenant is given notice of a hearing in advance and can make representations at the hearing.

Less commonplace is the use of without notice application procedure to remedy breach of tenancy issues, i.e., a process whereby a defendant tenant is not given prior notice of the initial hearing and cannot make initial representations.

The usual benchmark for a without notice application being made is one where an order is urgently required, and the case has exceptional circumstances. Whilst regularly used for anti-social behaviour injunctions, the without notice procedure is rare for breach of tenancy injunctions.

It may be that in ordinary circumstances a breach of tenancy injunction does not meet the required threshold and it is not to be counted as exceptional. Anyone using the without notice procedure must tread carefully, as if used incorrectly it may rightly lead to criticism from a presiding judge and put a claimant in a difficult position on abuse of process.

That said, this does not mean that a breach of tenancy injunction can never reach the required standard for a without notice application. This was highlighted in a recent case dealt with by Andrew Fairman on behalf of a Registered Provider of Social Housing.

In this instance, Andrew was presented with a set of circumstances and advised on utilising the without notice procedure for a breach of tenancy injunction. The matter related to a significant pest infestation in the relevant property which needed urgent attention using an exterminator. The social landlord could not get access and needed an urgent remedy.

A without notice breach of tenancy injunction application was made and the Order was granted the same day, which included provision for the access to carry out the inspection, along with a forced entry clause and a potential exclusion provision, should this have been necessary whilst the initial extermination works were carried out.

This case highlights the correct use of the without notice procedure for breach of tenancy injunctions and the fact that the Court agreed on the facts that it was exceptional and urgent intervention was required.

Whilst clearly the norm for breach of tenancy injunction is an on-notice application, this case highlights that without notice injunctions can be useful and perhaps more consideration should be given to them, particularly in matters where a health risk exists and is being allowed to perpetuate.

Should you wish to discuss the potential use of without notice applications in breach of tenancy matters, please contact Andrew Fairman for more information.

Law is correct as of 7^th November 2022.

*Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. You are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon as legal advice. No liability is accepted for any error or omission contained herein.