Legal Studies Research Findings No. 28The Use of Civil Legal Remedies for Neighbour Nuisance in Scotland
Rowland Atkinson, Tom Mullen & Suzie Scott, University of Glasgow
This research was commissioned by the Scottish Courts Administration (now Civil Justice and International Division, Courts Group, Justice Department) in response to a recommendation of the Scottish Affairs Select Committee, which called for research into delay in eviction cases and the effectiveness of other legal remedies. The aims of the research may be summarised as being: to establish how civil legal remedies are being used in practice to deal with the problem, and to evaluate the effectiveness of these remedies.
The vast majority of complaints to social landlords of anti-social behaviour are successfully resolved by housing management action. However, there is little use of mediation as an alternative to legal remedies.
Except where there were convictions for drug-dealing, cases were only taken to court where the offending behaviour continued, despite repeated warnings from the landlord. However, in a number of cases the tenants could be regarded as vulnerable due to mental health, serious alcohol abuse and 'out of control' children. This raises concerns that eviction action was not the most appropriate response to the problem.
The way complaints are managed is crucial both to the successful use of legal remedies, and the prospects of resolving complaints without going to court. In that regard there was considerable variation in the nature and effectiveness of links between housing staff and other agencies and/or departments.
Eviction is by far the commonest legal remedy used against anti-social behaviour, but there are substantial variations in the extent to which it is used by social landlords. Most eviction summonses result either in eviction or other outcomes which are acceptable to the landlord.
The substantive law on eviction already covers all situations in which landlords might reasonably seek to evict. The most important obstacle is the difficulty of proving allegations stemming from the reluctance of potential witnesses to give evidence.
Delay is a serious problem. However, there is considerable scope for reducing the extent of delay in eviction actions through changes in practice in both landlords and the courts.
Interdict is much less commonly used than eviction as a remedy for anti-social behaviour, and misperceptions of its scope were not uncommon. However, landlords are almost invariably successful in obtaining interdict and find it a speedy remedy, except where there are proceedings for breach of interdict.
There is some cause for concern over the appropriateness of the outcomes in both eviction and interdict cases in the courts, given the high proportion of cases in which the defender does not attend or is not represented.
Other remedies (specific implement, title conditions, by-laws) are little used. Landlords were not convinced that anti-social behaviour orders will make a substantial contribution to dealing with anti-social behaviour.
Definition and evaluative criteria
The report outlined the complexities in the definition of the problem but proposed the following working definition:
Anti-social behaviour is behaviour which threatens the physical or mental health, safety or security of individuals and households, or causes offence or annoyance to individuals and households.
The research applied the following evaluative criteria:
- the speed with which the remedy may be obtained.
- the appropriateness of the substantive law for dealing with anti-social behaviour
- whether the statutory or other legal criteria are properly applied in practice
- the ease or difficulty of establishing the necessary factual basis of the legal action.
- the costs of legal remedies
Analysis of leases and policies
Although a Model Secure Tenancy agreement (the MoSTA) was produced in 1997, the analysis of the local authority leases found that few landlords had adopted this. There was no common style or content in local authority leases. However, many local authorities had reviewed their leases following local government reorganisation and our research found leases had improved since previous research in 1996. Most housing associations followed the Model Assured Tenancy Agreement (MATA) and the leases in this sector were much more consistent in style. Rather than reform their lease, some landlords had introduced a 'Good Neighbour Charter' which aimed to spell out standards of expected behaviour to tenants.
Most landlords (86%) claimed to have written policies which covered neighbour disputes and anti-social behaviour. In general, both local authority and housing association policies were broadly consistent with good practice guidance and showed awareness of the complexity of the issues involved.
Management of anti-social behaviour
The postal survey found that only 15 per cent of landlords' thought that neighbour nuisance was a big or very big problem and 40 per cent thought that it was a small or very small problem. Local authorities were most likely to perceive the problem of anti-social behaviour at the upper end of the scale. On average, landlords recorded 38 complaints per 1000 tenancies (the median figure) but levels of complaint about behaviour varied enormously between landlords.
The good practice literature suggests that landlords should consider a range of tools and the research considered some of these. The survey found that most landlords do not use professional witnesses, although a large proportion of those taking tenants to court did so. A quarter of social landlords said that they used mediation, with local authorities being most likely to do so. Only 9 per cent of landlords provided services responding to anti-social behaviour outside office hours.
The case study landlords provided an opportunity to consider the management of complaints about anti-social behaviour in more detail. Despite differences in the way policies were expressed, there appeared to be a broad consensus in practice about the sorts of behaviour that deserved eviction; for example, all were prepared to evict for persistent excessive noise. Conversely, there was a widely held view that purely bilateral neighbour disputes should not lead to eviction. One clear area where policies diverged was on drugs. Some landlords adopted a 'zero tolerance' approach to drug-dealing while others considered the merits of the case. There were far more mixed views on the treatment of sex offenders.
Our overall impression was that specialist staff had a better understanding of the legal process than generic staff. It is difficult to draw firm conclusions from this small sample but it should be noted that a parallel study of legal remedies in England found that specialist units were more effective in managing anti-social behaviour.
The postal survey revealed that a substantial number of landlords' information systems were not adequate to providing the data required. The case study work also found evidence of inadequate record-keeping, including inaccurate information on the number of legal actions.
Most case study landlords aimed to resolve complaints through housing management action and were generally successful. It was clear that most landlords took a 'traditional' approach to resolving problems. Except where there were convictions for drug-dealing, cases were only taken to court where the offending behaviour continued, despite repeated warnings from the landlord. For most landlords, this was a very small proportion of the total number of complaints. Only 2?landlords were using alternative legal remedies ñ interdict or specific implement and only 3 were using mediation. Mediation was seen in a positive light by those landlords who used it.
The case study work also examined arrangements for working with other agencies. Links with the police appeared to work well. There was less satisfaction with relationships between housing and social work staff. However, local authority housing staff felt that inter-departmental co-operation had improved since local government reorganisation. The least effective links appeared to be those between housing staff and environmental health departments.
The postal survey found that willingness to evict varied by sector with local authorities expressing greatest readiness to use the legal process and co-ops the least. There were very substantial variations in the rates at which social landlords used legal action for eviction in practice.
The first stage of legal action is to serve a notice seeking possession (NOP). Under half (49%) had served an NOP on neighbour nuisance grounds in 1996/97 and only a third (33%) of landlords had taken a case to court. Overall, in the 2 years studied (1995/96 and 1996/97) around 1500 to 2000 tenants per year were served with a NOP due to their behaviour at most 150 were taken to court each year. This was a very small proportion of all eviction actions raised by social landlords (most of which are for rent arrears) and a minute fraction of the total number of tenancies in the social rented sector.
The research also examined landlords' case files for 90 eviction actions raised in the study period. Actions were raised for a wide range of behaviours. The most common were noise (63%), aggressive and abusive behaviour (43%) and vandalism or damage to property (34%). In most cases there was more than one type of complaint. With the exception of the drug-dealing cases, there was a history of complaints and problems prior to court action. One fifth of the cases (22%) were for drug-dealing. The majority of these (80%) were raised by one landlord, whose policy was to raise proceedings automatically following conviction for drug-dealing.
It should also be noted, however, that in a number of these cases the tenants could be regarded as vulnerable. These included vulnerability through mental health, serious alcohol abuse and 'out of control' children. In a number of these cases, the landlord had clearly tried to involve social work and health services, apparently without success. However, it raises concerns that eviction action was not the most appropriate response to the problem.
There was little evidence of discontent with the provisions of the substantive law. Moreover, the data suggest that the statutory grounds themselves, the reasonableness requirement and the manner in which either were applied by judges, did not present serious obstacles to eviction.
Proof of fact was clearly a substantial problem. This was largely due to the reluctance of neighbours to come forward as witnesses. There was widespread and serious concern about actual and potential witnesses being either intimidated or inhibited by fear of reprisals from giving, or agreeing or to give, evidence. This problem was said to prevent many cases from getting started. However, the case studies suggested that practical measures, such as use of professional witnesses, and good witness support could alleviate it to some extent.
Excessive delay in the conduct of proceedings was perceived to be a major problem by social landlords and neighbours affected by anti-social behaviour. Solicitors and sheriffs were also concerned about delay, but had a greater understanding of the causes. On average, cases were concluded in 9 months from the point at which the summons for eviction was warranted to the date of disposal. However, there were considerable variations in the length of cases. Many undefended cases were disposed of at first calling and most of these were settled in under 6 months. However, defended cases took substantially longer.
On average, all stages of the process took longer than the minimum laid down by the rules of procedure, which govern the timetable for legal action. However, most delay was due to contingent factors. The most significant of these were:
- fixing the date for proof
- sisting the case to allow the defender to apply for legal aid
- sisting to monitor behaviour.
The research found that there was substantial scope for speeding up cases within the existing legal framework, without the need to alter the rules of procedure, by reducing contingent delay.
In practice, in most cases the legal process resulted in favourable outcomes for the landlord. The most common outcome was a decree for possession (56%). Although 33 per cent of cases resulted in a decree of dismissal, but in many of these cases tenant abandoned the property or the behaviour improved. Overall, probably no more than 5 per cent of cases were 'lost' by the landlord ñ i.e. resulted in an outcome with which they were unhappy.
However, a substantial minority of tenants (29%) were absent or unrepresented in court. The analysis of outcomes found that landlords were more likely to obtain a decree for possession in such cases. There is a possibility that some of these cases would not have resulted in eviction had the action been defended.
The research provided limited and inconclusive evidence on the broader effect of eviction in stopping, preventing, or deterring anti-social behaviour. Some interviewees thought that that eviction merely displaced the problem to another location, but others had not experienced further complaints about evicted tenants. There was no consensus on whether there was a substantial deterrent effect on other tenants.
Despite the advantages claimed for it, and the encouragement of the good practice literature, interdict has not been widely used as a remedy for anti-social behaviour. There were only 32 interdicts raised in 1996/97. There was some evidence of that use of the remedy was misunderstood and this might be a factor which explains its limited use.
Only 2 of the case study landlords made substantial use of interdict for anti-social behaviour. They had used it a wide range of circumstances but most commonly when there was a regular pattern of behaviour such a noisy parties, abusive and threatening behaviour or arguments. Both the main users had a policy of using interdict as a first step rather than proceeding straight to eviction, but this policy was not rigidly adhered to.
Interim interdict was found to be a genuinely speedy remedy in practice. However, breach of interdict was a slow and cumbersome process. Proof of fact was not a problem at the interim interdict stage. At the breach of interdict stage, the reluctance of potential witnesses to appear in court became a practical problem. As a result, where the interdict was not obeyed, landlords preferred to seek eviction.
The substantive law posed no major problems for those seeking to obtain interdict, except with regard to title and interest to sue. The case of Dundee District Council v Cook 1995 SCLR 559, which suggested that landlords did not have title and interest to interdict owner-occupiers, might have deterred landlords from pursuing such cases.
In general, interim interdict and perpetual interdict were easy remedies for social landlords to obtain ñ almost all those sought were granted. Actions were rarely defended and this was cause for concern because the pursuer's allegations were not tested in court and it appeared that a prior interdict was likely to influence the outcome of eviction proceedings. There was evidence that, in a significant minority of cases, the use of interdict (without a subsequent eviction summons) had been followed by an improvement in the situation.
The final aim of the project was to analyse the economic costs associated with the legal process. We estimated that, in total, the costs of housing officers dealing with all complaints about neighbours was over £17.5 million per year. Within this figure, the cost to landlords of dealing with more serious anti-social behaviour cases was estimated to be around £3.9 million per year. In total, we estimated that the costs of taking legal action were around £0.5 million in 1996/97.
The costs involved in taking legal action were only a small proportion of the costs of dealing with anti-social behaviour and it is likely that that many of the costs of housing officer's time would have been incurred anyway. Viewed from this perspective, the costs of taking legal action do not look expensive. Whether the legal process is cost-effective is more difficult to assess, particularly when judged against the broader criteria of effectiveness ñ success in stopping, preventing, or deterring anti-social behaviour.
Conclusions and Recommendations
Social landlords may require further guidance and training on recording complaints, the use of a range of legal remedies, alternatives to the courts (mediation), inter-agency co-operation and the identification of costs.
Landlords should consider whether to introduce specialist units to respond to anti-social behaviour, strategies for the use of legal remedies, arrangements for support of witnesses/complainers, greater use of professional witnesses, and arrangements for support of vulnerable families.
There is no case for further change to substantive law for either eviction or interdict with a view to making it easier to evict in cases of alleged anti-social behaviour
Reducing the extent of delay in eviction cases can be achieved through changes in the courts and landlords. Landlords should consider whether they can reduce pre-litigation delay and should manage cases more effectively to ensure that sists are recalled timeously. The courts could prioritise anti-social cases and could extend the practice of fixing a date for proof instead of sisting.
Legislation would be desirable to clarify that social landlords have in appropriate circumstances title and interest to sue persons who molest their tenants. Legislation is also required to simplify and accelerate the enforcement of interdict in cases of breach.
Further research is needed on:
- the effectiveness of specialist units for dealing with anti-social behaviour
- the relationship between mediation and legal remedies
- appearance by and representation of defenders in court
- the effect of legal remedies on behaviour including what happens to those who are evicted
- the impact and effectiveness of ASBOs
- the global costs of anti-social behaviour.
A feasibility study was undertaken in Autumn 1997. Fieldwork in the main project was carried out between May 1998 and April 1999. The methods used were:
- a postal survey of all social landlords carried out in the Spring of 1998
- analysis of leases and policies of landlords responding to the survey
- case studies of 10 social landlords and 5 sheriff courts
- analysis of court records
The data analysed included 185 returns from the postal survey, over 100 cases in which legal remedies had been sought, and 60 interviews with lawyers, housing staff, sheriffs, court staff and witnesses to anti-social behaviour.
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