As much as it might be interesting to write an article, from a legal perspective, on how to smoke and deal in drugs on your developments, that is not what this update is about.  Hopefully, despite that news, some of you still wish to read this update!  

We have been asked by one of our subscribers for a Legal Update with some guidance on how a block manager and its client might approach the issue of complaints from other residents of the smoking, cultivating or dealing with drugs from a property in a development.  It is that issue with which we deal below.

Most agreements affecting freehold or leasehold property do not contain a covenant that will prohibit smoking within a demised property (as distinct from the common parts).  However, most will contain covenants prohibiting illegal or immoral conduct from the flat and the causing or permitting of nuisance. 

Illegal Activity

Clearly, the cultivation or selling of drugs from premises (or anywhere) is going to be illegal.  In relation to cultivation or dealing in drugs on property belonging to your client, the advice has to be that reports should be made to the Police to enable them to investigate and take action accordingly.   Where a prosecution for illegal activity in or on a property falling within your client’s management is successful, it is possible to rely upon that result in an action for breach of covenant in contemplation of forfeiture. 

Commonly, but certainly not always, the illegal conduct is that of the property owner’s tenant and thus some encouragement to the owner, by way of threats of, or actual action for breach by virtue of the conduct of their tenant is often enough to see the tenant removed by the property owner.

Antisocial Activity/Nuisance

The effect of the use of drugs is likely to cause odours or antisocial conduct by those taking the drugs. Those affected by that conduct will consider it as a nuisance.  Complaints will then be made to you or your client, often with an expectation of immediate steps being taken to remedy the problem.   What the client does next is most important as is the commercial consideration of what, if any, action it is to take.

The client will need to look at any situation from a commercial point of view because there is always a question of costs involved in pursuing any breach.  Accordingly, the client will need to first determine whether the issue is one with which it should become involved and whether it is to seek an indemnity for its costs from those wishing it to take action, or whether it is in fact a matter between the complaining and offending tenant(s) for them to resolve between themselves with no or minimal input from your client. 

Here it is relevant to refer you to two previous Legal Updates relating to nuisance that we provided in May 2018 (Dealing with complaints of noise nuisance) and July 2019 (What constitutes a nuisance?), both of which can be viewed by clicking the highlighted text.

The crux of the advice, if the landlord is to pursue civil remedies based upon the complaints of the conduct of others on the development, is that those complainants are required to collate and then present evidence to a court or tribunal in support of the client’s action.  Accordingly, it is necessary for those affected by the conduct to maintain contemporaneous records of the conduct, odours etc. and the impact of that upon them.   Such records should be produced to you or your client on a regular basis.  Once sufficient evidence has been obtained to support a claim the client should confirm with those complainants that they remain willing to present their complaints in the open forum of the court or tribunal.  Without such presentation it is often the case that the client has no evidence and thus no viable action.

So long as the client has the evidence and witnesses to present that evidence it should then seek further advice on the merits of the claim and, if good, raise a claim for either:-  

-          a determination of the breach in contemplation of the landlord’s right of forfeiture; or

-          an injunction requiring the immediate cessation of the unlawful conduct.

Different cases will be better suited to one or the other of the above, and thus the client would be wise to seek competent advice before progressing a matter in either direction.     

So, where you do receive complaints or notice of unlawful conduct within, or on, a property that you manage:-

• The first response is to request as much information as you can from the complainant(s) and to ask those reporting the issue to you to continue to obtain evidence of the conduct or issues in line with the above and attached. 

• The next stage is to consider what you have been presented with.  Is it possibly illegal and thus should be reported to the Police or is it merely a civil issue for you and your client to consider how they are to act?

• Next you should consider with your client (and its lawyer) whether it is a matter with which the client needs to become involved, how it is to be funded and whether the costs involved can be recovered from the defaulting owner.

• If the client is to proceed then good quality advice should be obtained at an early stage and an assessment made as to the approach to be taken.  Often, where the issue involves a tenant of the owner, the matter can be resolved relatively promptly and without the need for the issue of costly proceedings.  This route also often negates the need for complainants to be identified.

• If proceedings are required, ensure that the client is properly and fully advised to ensure a greater prospect of success.

For more information, please contact Faye Didcote on 01435 897297 or Faye.Didcote@kdllaw.com.

Disclaimer

This legal update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole. 

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