Need Advice on Unlawful Eviction?
HELEN TOWNSEND >
Head of Dispute ResolutionWed 27 December 2017
Following the conviction of a Peterborough based landlord for an unlawful eviction last month, Taylor Rose TTKWs' head of Dispute Resolution Helen Townsend revisits the protection afforded to tenants by the Protection from Eviction Act 1977.
Although it has been more than 40 years since the Protection from Eviction Act 1977 was passed, landlords still do not seem to appreciate or understand that the recovery of possession of their property is not as straight forward as they would think. In fact the recent conviction of a Peterborough landlord who changed the locks on the rental property whilst the tenant was out, is clear evidence that not all landlords understand that such action, or even the harassment of the tenant is prohibited under the Protection from Eviction Act 1977.
Why does the Act matter?
If a landlord or other party tries to make a tenant leave their home without following certain prescribed procedures, they may leave themselves open to a claim for the unlawful eviction of the tenant. Landlords need to be aware that this action may not only result in civil proceedings being brought by the tenant, but they may also find themselves the subject of criminal proceedings being pursued by a local authority as was the case in Peterborough.
Under the 1977 Act there are three offences which can occur, these are as follows:
This is where a residential occupier (someone who has a right to occupy the premises as a residence) is deprived of the ability to occupy those premises or part of them. This offence can be committed by any person, not necessarily just a landlord or owner but also other third parties for example letting agents, or agents/employees acting on their behalf.
A landlord or another person may be guilty of unlawful eviction if they:
- do not give the appropriate legal notice to leave the property that must be given;
- change the locks find the locks have been changed;
- evict a tenant without a court order.
A landlord or other person will be guilty of unlawful eviction unless he can establish that he reasonable grounds to believe that the occupier had ceased to reside in the premises or if he can establish that the person was not a 'residential occupier' for the purposes of the Act. Other defences can include the fact that the person was not in fact deprived of occupation of the premises or if what occurred did not happen with the knowledge or consent of the landlord or other party.
The other offences under the Protection from Eviction Act 1977 amounts to harassment. There are two harassment offences, the first requiring an ‘intention’ and which can be committed by any person. The second can only be committed the landlord or his agent and with this harassment no intention is required.
Anyone who tries to make an occupier leave their premises by threatening violence or making it difficult for them to stay may therefore be guilty of harassment.
Acts of harassment can include:
- threats and physical violence;
- the unauthorised stopping of services such as electricity, gas, water;
- withholding keys – i.e. if there are two tenants in a property but the landlord will only give one a key;
- refusing to carry out repairs;
- anything done on behalf of a landlord that causes distress.
A person will be guilty of harassment unless they can establish that they reasonably believed that the occupier did not have the right to be there, that they were not responsible for the actions in question, that the actions in question did not happen or that the harassment did not occur. The defences will likely be factually specific to the allegation and again it is important to gain legal advice.
In light of the above, when a landlord wishes to remove a tenant from their property they have to ensure that they do it correctly and in line with the prescribed possession procedures. These include the serving of the correct notice, the obtaining of a court order and the instruction of an enforcement officer, whether by a bailiff or sheriff to recover the physical possession. Even with a court order the landlord cannot effect eviction themselves.
If criminal proceedings are brought then the proceedings commence in the magistrates court. The hearing will then take place in either the magistrates or Crown Court (depending on the circumstances) and during the proceedings a local authority can apply for compensation (up to £5,000 per conviction) for the displaced tenant. If such an amount is awarded then that figure would then be deducted from any civil claim that the tenant may make. If convicted in the magistrates’ court the landlord can also be fined up to £5,000 and sent to prison for up to six months. The Crown Court can impose any fine and/or imprisonment for up to two years.
In light of the severity of the penalties for unlawful eviction and/or harassment it is imperative that the correct advice is received and procedures followed to remove a tenant from a property and ensure that the landlord does not leave themselves open for a criminal prosecution.
The Civil Proceedings
In addition to the criminal proceedings, a landlord who has unlawfully evicted a tenant will also likely find themselves facing a civil claim from the tenant for compensation and reinstatement. Harassed and/or illegally evited occupiers can use the civil court (County Court) to get an injunction to stop any harassment and to be reinstated into their home. They can also claim damages as compensation for a landlord’s actions. The level of the compensation awarded depends on the circumstances. In one case a landlord who had harassed the tenant for rent arrears, assaulted the wife and then evicted them without a warrant (after which he sold their possessions to pay for the arrears) was ordered to pay £1,500 compensation for the harassment leading up to the eviction, £2,500.00 for the actual eviction and time spent out of the property, and £1,250 in aggravated damages. That reflected the landlord’s conduct.
Damages are awarded for the following:
- General Damages - physical Injury, loss of occupation, inconvenience and suffering
- Special Damages - the value or specific items lost or damaged and the cost of alternative
- Aggravated Damages – for especially severe suffering, outrage or indignation at how a
person has been treated.
The amount of the damages will be reduced if an offer of reinstatement is made before a hearing takes place. If an offer is made and unreasonably refused or if the tenant’s behaviour before the eviction was unreasonable then the level of damages will also be reduced. The award for damages could however be significant. Claims have seen awards of £8,800, £10,860 and £7,764 which would significantly affect an unwitting landlord’s profits.
In addition to the claim for compensation there is of course the additional claim for the injunction, under which the landlord can be forced to stop the harassment or illegal eviction and reinstate the tenant. Such injunctions will usually involve the issue of proceedings as well which will deal with the claim for compensation. Because of the urgent nature of such a claim an urgent hearing will often be set and minimal notice (normally two days) is given to the landlord. In emergency situations, a hearing can take place without notice at all (without notice hearings) and an injunction granted for a couple of weeks until a further hearing can take place.
If an injunction is granted and a landlord breaches the terms or fails to comply they can find themselves being fined or imprisoned.
Whilst it is completely understood that a property belongs to the landlord, their ownership of that property does not detract from the rights that their tenants have to quiet enjoyment of the property and not to be evicted without the correct notifications and procedures being followed. Taylor Rose TTKW’s Dispute Resolution Department has many years of experience in dealing with the possession process and as such we have streamlined the process to be able to offer a fixed fee fully inclusive service from service of notices to possession hearings. If you would like further information regarding the service or advice should a claim have been made for compensation then please contact the Dispute Resolution Department on 01733 333333.
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