Residential Tenancies Act 2004

Amendment of Housing (Miscellaneous Provisions) Act 1997.

197

197.The Housing (Miscellaneous Provisions) Act 1997 is amended—

( a) in section 1, by—

(i) substituting “Housing Acts 1966 to 2002 or Part V of the Planning and Development Act 2000” for “Housing Acts 1966 to 1997” in each place where those words occur, and

(ii) inserting the following definition after the definition of “housing authority”:

“‘relevant purchaser’ means—

( a) a person to whom a housing authority have sold a house under the Housing Acts 1966 to 2002, or

( b) a person in whom there subsequently becomes vested (whether for valuable consideration or not and including by means of inheritance) the interest of the person referred to in paragraph ( a) of this definition in the house referred to in that paragraph;”,

( b) by substituting the following section for section 3:

“Excluding orders.

3.—(1) A tenant or relevant purchaser may, in respect of a house—

( a) let to the tenant by a housing authority, or

( b) in respect of which he or she is such a purchaser,

apply to the District Court for an order (to be known and referred to in this Act as an ‘excluding order’) against a person including, in the case of an application by a tenant, a joint tenant (referred to in this Act as ‘the respondent’) whom the tenant or relevant purchaser making the application believes to be engaging in anti-social behaviour.

(2) A housing authority may, in respect of a house referred to in subsection (1), apply to the District Court for an order (which shall also be known and is in this Act referred to as an ‘excluding order’) against a person, other than the tenant or relevant purchaser of the house, (in this Act also referred to as the ‘respondent’) whom the authority believe to be engaging in anti-social behaviour where the authority—

( a) having consulted the tenant or relevant purchaser and the health board in whose functional area the house is situate, believe that the tenant or relevant purchaser—

(i) may be deterred or prevented by violence, threat or fear from pursuing an application for an excluding order, or

(ii) does not intend, for whatever other reason, to make such an application,

and

( b) consider that, in the interest of good estate management, it is appropriate, in all the circumstances, to apply for the excluding order.

(3) Where the court, on application to it, is of the opinion that there are reasonable grounds for believing that the respondent is or has been engaged in anti-social behaviour it may by order—

( a) direct the respondent, if residing at the house in respect of which the application was made, to leave that house, and

( b) whether the respondent is or is not residing at the house—

(i) prohibit the respondent for the period during which the order is in force from entering or being in the vicinity of that house or any other specified house or being in or in the vicinity of any specified area, being an area one or more of the houses in which are under the control and management of a housing authority, or

(ii) prohibit the respondent, during the said period, from doing all or any of the things referred to in subparagraph (i) save where specified conditions are complied with.

(4) An excluding order may, if the court thinks fit, prohibit the respondent from causing or attempting to cause any intimidation, coercion, harassment or obstruction of, threat to, or interference with the tenant, relevant purchaser or other occupant of any house concerned.

(5) Where an excluding order has been made, the tenant, the relevant purchaser or the housing authority, as appropriate, or the respondent may apply to have it varied, and the court upon hearing the application shall make such order as it considers appropriate in the circumstances.

(6) An excluding order, whether made by the District Court or by the Circuit Court on appeal from the District Court, shall, subject to subsection (7) and section 9, expire three years after the date of its making or on the expiration of such shorter period as the court may provide for in the order.

(7) On or before the expiration of an excluding order to which subsection (6) relates, a further excluding order may be made by the District Court or by the Circuit Court on appeal from the District Court for a period of three years, or such shorter period as the court may provide for in the order, with effect from the date of expiration of the firstmentioned order.”,

( c) in section 3A (inserted by the Housing (Traveller Accommodation) Act 1998 ) by—

(i) substituting in subsection (2) the following paragraph for paragraph ( a):

“( a) having consulted the authorised person concerned and the health board in whose functional area the site is situate, believe that such authorised person—

(i) may be deterred or prevented by violence, threat or fear from pursuing an application for a site excluding order, or

(ii) does not intend, for whatever other reason, to make such an application,

and”,

and

(ii) substituting in subsection (3) the following paragraph for paragraph ( b):

“( b) whether the respondent is or is not residing at the site—

(i) prohibit the respondent for the period during which the order is in force from entering or being in the vicinity of that site or any other specified site or being on or being in or in the vicinity of any specified site, or

(ii) prohibit the respondent, during the said period, from doing all or any of the things referred to in subparagraph (i) save where specified conditions are complied with.”,

( d) by substituting the following sections for section 4:

“Excluding orders.

4.—(1) If, on the making of an application for an excluding order or between the making of the application and its determination, the court is of the opinion that there are reasonable grounds for believing that there is an immediate risk of significant harm to the tenant, relevant purchaser or other occupant of the house if the order is not made immediately, the court may by order (to be known and referred to in this Act as an ‘interim excluding order’)—

( a) direct the respondent, if residing at the house in respect of which the application was made, to leave that house, and

( b) whether the respondent is or is not residing at the house—

(i) prohibit the respondent from entering or being in the vicinity of that house or any other specified house or being in or in the vicinity of any specified area, being an area one or more of the houses in which are under the control and management of a housing authority, until further order of the court or until such other time as the court shall specify, or

(ii) prohibit the respondent, until such further order or time, from doing all or any of the things referred to in subparagraph (i) save where specified conditions are complied with.

(2) Subsections (4) and (5) of section 3 shall apply to an interim excluding order as they apply to an excluding order.

(3)( a) An interim excluding order may be made ex parte where, having regard to the circumstances of the particular case, the court considers it necessary or expedient to do so in the interests of justice.

( b) The application for such an order shall be grounded on an affidavit or information sworn by the applicant.

( c) If an interim excluding order is made ex parte

(i) a note of evidence given by the applicant shall be prepared forthwith—

(I) by the judge,

(II) by the applicant or the applicant's solicitor and approved by the judge, or

(III) as otherwise directed by the judge,

and

(ii) a copy of the order, affidavit or information and note shall be served on the respondent as soon as practicable.

( d) The order shall have effect for a period, not exceeding 8 working days, to be specified in the order, unless, on application by the applicant for the excluding order and on notice to the respondent, the interim excluding order is confirmed within that period by order of the court.

( e) The order shall contain a statement of the effect of paragraph ( d).

( f) In paragraph ( d) ‘working days’ means days other than Saturdays, Sundays or public holidays (within the meaning of the Organisation of Working Time Act 1997 ).

(4) An interim excluding order shall cease to have effect on the determination by the court of the application for an excluding order.

Provision for avoidance of doubt

4A.—For the avoidance of doubt—

( a) no order may be made under section 3 or 4 directing anything to be done, or prohibiting anything from being done, in a housing estate none of the houses in which is under the control and management of a housing authority,

( b) a house shall, for the purposes of those sections and paragraph ( a), be regarded as being under the control and management of a housing authority despite the fact that the authority has, under section 9 of the Housing (Miscellaneous Provisions) Act 1992 , delegated all or one or more of its functions in respect of that house to a designated body.”,

( e) by substituting the following section for section 9:

“9.—(1) Where an excluding order or interim excluding order has been made, the tenant, the relevant purchaser or the housing authority, as appropriate, or the respondent may apply to the court that made the order to have the order discharged and thereupon the court shall discharge the order if it is of the opinion that, in all the circumstances, it is appropriate to do so.

(2) For the purposes of this section and section 3(5), an order made by a court on appeal from another court shall be treated as if it had been made by that other court.”,

and

( f) in section 14, by inserting the following subsections after subsection (3):

“(4) Notwithstanding anything contained in the enactments specified in subsection (5), a housing authority may refuse to sell or lease a dwelling to a person where the authority considers that the person is or has been engaged in anti-social behaviour or that a sale or lease to that person would not be in the interest of good estate management.

(5) The enactments mentioned in subsection (4) are:

( a) section 90 of the Housing Act 1966;

( b) section 3 of the Housing (Miscellaneous Provisions) Act 1992 ;

( c) section 6 of the Housing (Miscellaneous Provisions) Act 2002 ; and

( d) Part V of the Planning and Development Act 2000 .”.