Landlords: read this before you try evicting a non-paying tenant
Rachel Garton, 1st August, 2017
Residential landlord Nathan Shipley of Stoke on Trent was in the news last month after he appeared at North Staffordshire Justice Centre accused of harassing his tenant.
Magistrates found him guilty of the offence of harassing an occupier to give up occupation of their premises.
He was fined £2000, and with extra costs had to pay almost £3000 in total.
Mr Shipley’s tenant had not paid him any rent for over six months. Shipley, frustrated and out of pocket, took matters into his own hands.
He changed the locks and attempted to remove windows and doors to prevent the tenant being able to live in the property.
In mitigation, his defence said that Shipley had tried to contact him by text and the tenant had laughed at him.
Shipley's frustrations must be familiar to many residential landlords, and the temptation to resort to self-help in circumstances like this must often be a strong one.
The magistrates recognised that. They told him they understood his frustrations, but said as a landlord he should have known the proper procedures to go through.
What this means for landlords
This case highlights that being a landlord is a serious business with legal responsibilities.
It can often feel like the due process to get possession is heavily weighted in a tenant's favour, especially where no rent is being paid.
But Mr Shipley’s fine and prosecution should serve as a reminder of the consequences of failing to follow the proper procedures.
A good rule of thumb is, if in doubt, obtain a court order for possession and a warrant of possession. The vast majority of residential occupiers can’t lawfully be evicted without those.
Only those occupiers classed as Excluded Occupiers will not require a possession order. (I will deal with that in a separate article.)
In most instances, if you evict without a possession order and warrant of possession you will be committing the offence of Illegal Eviction under the Protection from Eviction Act 1977.
Eviction can include changing the locks whilst the tenant is out, physically removing the tenant by force, or denying re-entry.
In Shipley’s case, his offence was not illegal eviction itself, it was harassment under the Protection from Eviction Act.
It‘s not clear why it was not actual eviction. Perhaps his efforts to evict were unsuccessful.
What is classed as harassment?
Harassment falls short of actual eviction.
It can involve interfering with the peace and comfort of those living in the property. Or persistently withdrawing services that are reasonably required for the occupation of the premises (cutting off water or supplies of other utilities).
The offence can be by any person who had intent to cause an occupier to leave all or part of the property.
Or by a landlord or landlord’s agent, if the landlord or agent should have known or had cause to believe their actions were likely to have that effect.
What claims can tenants bring against landlords?
There are both criminal and civil remedies for the offences.
For example, an illegally evicted or harassed tenant could bring a civil claim against the landlord for damages, and possibly also an injunction to allow them to get back into the property.
At the same time, criminal proceedings could be brought against the landlord.
The local authority has the power to bring the criminal proceedings. According to Shelter, the police rarely deal with illegal eviction complaints.
A private prosecution could be brought, but that would entail significant costs and costs risks for the complainant.
The penalty for illegal eviction or harassment under the Protection from Eviction Act is a fine, as in Shipley's case.
The Protection from Eviction Act
In practice, it’s not always clear if a tenant has given up possession or not.
Tenants don’t always obediently hand in keys when they leave, especially if trying to evade liability for rent arrears or damage and dilapidations.
It can be difficult to tell sometimes whether they have gone. If a landlord re-enters prematurely and the tenant returns, there is the risk of an illegal eviction claim.
The Protection from Eviction Act provides a defence to a claim of illegal eviction, which is that the landlord believed or had reasonable cause to believe that the tenant was not residing at the property.
What is reasonable to believe will depend on the facts and behaviour in each case.
If you’re not certain your tenant has left…
Gather and keep as much evidence as possible about why they believed the tenant had gone.
Speak to neighbours, note what they say about the tenant having left, and get their contact details.
Take photos of how the property was left, especially if any essentials like beds, fridges have gone, and piles of unopened mail have been left.
Put a note through the door before you change the locks asking the tenant to urgently get in touch if they are still living there, giving them a reasonable time to respond.
A note such as this, sometimes placed on the door and called an ‘abandonment notice’, has no legal effect.
It doesn't entitle the landlord to possession, but if it expires without any contact from the tenant, it will act as evidence that there was reasonable cause to believe the tenant had ceased to reside there.
Need advice? Get in touch today
Please call Rachel Garton on 01482 324252.
You can find out more about our Property & Real Estate services here.
- How landlords can get possession of a sublet property
- How landlords can avoid set-off when getting a possession order