Modern residential leases usually contain a clause which prohibits the occupants from carrying out illegal activities within a property. These clauses can be coupled together with a clause which prevents the occupants from creating a nuisance that interferes with their neighbours’ enjoyment of their properties.
The recent case of Gibbins v Gibbins  UKUT 0335 (LC), sets out the evidential steps, which a landlord must establish for a Tribunal to find that there has been a breach of the lease in relation to the carrying out of illegal activities.
In the Gibbins case, the landlord issued an application for breach of lease pursuant to section 168(4) of the Commonhold and Leasehold Reform Act 2002. The application submitted that there had been a breach of the lease concerning subletting and creating a nuisance in relation to the behaviour of the occupants. The Tribunal found that the nuisance clause had been breached by the activities taking place inside the property, but went further than what was alleged in the content of the application, by finding that there had been unlawful drug taking inside the property.
On appeal, the Upper Tribunal found that there had been a “technical” mistake by the Tribunal determining a breach of the lease in relation to unlawful drug taking, when it was not asserted in the landlord’s case. The Upper Tribunal proceeded to set aside this aspect of the Tribunal’s decision.
Irrespective of this mistake, the Upper Tribunal decision sets out a helpful guide as to what a landlord must evidence in order for the Tribunal to find that there has been a breach of lease in relation to illegal activities taking place in a property.
The Appellant in Gibbins stated that in order to find a breach of the illegal activities clause, the following must be found:-
- that the occupant had taken drugs
- that this had taken place inside the property and
- that it was illegal for the occupants to have taken drugs, whilst using the flat.
The Appellant applied the above principles to the facts presented before the Tribunal and argued that there had been no evidence submitted, which demonstrated that the occupants had taken illegal drugs inside the property. The Appellant further pointed out that the evidence was merely circumstantial, in that the hearsay evidence submitted from the social services and police mentioned drugs, but not that the drugs were taken inside the property. Additionally, it was argued that there was no evidence to show that any alleged drugs used were in fact illegally taken by the occupants.
As with all lease clauses, the particular wording needs to be carefully scrutinised, before a breach can be established. The Appellants arguments on appeal allude to this, by advocating that there needs to be specific evidence presented that applies to a particular clause, in order to establish a breach. In this instance, the clause appears to have provided for no illegal drugs to be taken inside the property and the evidence available merely suggested that the occupant took drugs within the wider community. None of the evidence appears to show illegal drug use inside the property. It is therefore key for landlords to ensure that their evidence is in order, prior to establishing a breach of lease.