Illegal eviction - Nicola McEwen explains remedies available for renters
Posted on 16/12/20
Nicola McEwen, a Professional Support Lawyer at Shelter, explains remedies available to occupiers facing illegal eviction.
Helping a client who is facing harassment or illegal eviction and advising on their options in the heat of the moment can be stressful. This article aims to help advisers understand the civil and criminal laws relating to unlawful eviction, the police’s powers, and when to refer the client to a solicitor.
There various ways in which the civil law can protect tenants, the main provision being section 3(1) Protection from Eviction Act 1977 which prohibits evicting an occupier without a court order. It means that a landlord cannot evict an occupier without asking the court for permission to do so. For an eviction to be lawful, the landlord must obtain a possession order and have a warrant executed by the court.
The only occupiers that can be evicted without involving the courts are listed in section 3A of the 1977 Act. They are commonly referred to as excluded occupiers. Landlords of excluded occupiers do not have to apply to court for a possession order but must follow the contractual provisions for ending the occupancy agreement before eviction. They must not use force or violence when evicting an excluded occupier.
Implied terms of the tenancy agreement
Any tenancy agreement has two terms implied into it which are relevant to unlawful eviction:
The covenant for quiet enjoyment
This means the landlord must allow the tenant to occupy the premises undisturbed. Repeatedly visiting the property to ask the tenant when they were going to leave would be a breach.
The covenant not to derogate from grant
This means the landlord cannot use any of the retained parts of the premises (common parts or other properties) to make the tenant’s premises less fit for occupation. An example of a breach would be substantially blocking access or cutting off utilities to a flat.
A “tort” is a civil wrong. It can be created by statute or exist in common law.
Section 27(1) Housing Act 1988 creates a tort where:
“a landlord…or any person acting on behalf of the landlord in default unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises.”
It includes anyone acting for the landlord, such as an agent or the landlord’s friend.
Section 27(2) Housing Act 1988 creates a tort where a landlord or anyone acting on their behalf:
- attempts to unlawfully evict or restrict access to the property or part of it
- interferes with the use of the premises knowing it would force the occupier to leave.
This section makes it a statutory tort to attempt to unlawfully evict an occupier, even if the attempt is unsuccessful.
These statutory torts can give rise to the assessment of damages in a very specific way (see below).
Common law torts
Common law is not laid down in statute. It is based on legal precedents set by the courts.
Nuisance is where the surrounding environment interferes with the use of neighbouring land. A landlord allowing land used by them to flood onto the tenant’s premises would be committing nuisance.
Trespass to land is committed where someone enters land without the permission of the person entitled to possession. A landlord entering the premises without the tenant’s permission commits trespass.
Trespass to goods is the unlawful interference with possessions without the owner’s consent. It would be committed if the landlord removed the tenant’s belongings or even prevented access to them.
Trespass to the person is committed if the tenant is put in fear of attack (assault, also a criminal offence) or subjected them to actual force.
The landlord may be in danger of committing several criminal offences if they attempt an eviction without involving the court.
Section 1(2) Protection from Eviction Act 1977 says that:
“If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.”
Unlawfully depriving includes changing the locks.
To be protected from unlawful eviction, the residential occupier must have been:
- given permission to be there
- paying rent.
This offence can still be committed even if there is no written tenancy agreement.
Section 1 (3A) Protection from Eviction Act 1977 makes it an offence to do something the landlord or their agent reasonably believes will be likely to:
- cause the tenant to leave
- deter the tenant from pursuing any rights they have.
This could include threats, withdrawing services or utilities, and entering the property without the tenant’s consent.
Violence for securing entry
Section 6(1) Criminal Law Act 1977 say that:
“…any person who, without lawful authority, uses or threatens violence for the purpose of securing entry into any premises for himself or for any other person is guilty of an offence, provided that -
(a) there is someone present on those premises at the time who is opposed to the entry which the violence is intended to secure; and
(b) the person using or threatening the violence knows that that is the case.”
Violence under this section includes forcing entry. The fact that the landlord has a legal interest in the property does not amount to “lawful authority”.
Other criminal offences
The landlord’s conduct may also constitute the offences of assault, battery, or breach of the peace.
The police can help a tenant prevent an unlawful eviction, but some officers may be unfamiliar with the legal position or not wish to get involved. Usually, criminal prosecutions for unlawful eviction are brought by the local authority rather than the police. Some Black and minority ethnic tenants may not feel comfortable contacting the police for assistance.
Police officers attending an attempted unlawful eviction can:
- record details which may be relevant to criminal offences, including admissions, accusations
- warn the landlord if the officer suspects they may be committing, or about to commit an offence
- arrest the landlord if they are trying to get into the premises against the wishes of the occupier or for other arrestable offences e.g. assault, breach of the peace
- refer the tenant and landlord to the local authority tenancy relations team
- promptly inform the local authority tenancy relations team of any relevant incident.
Police officers could also persuade both parties to put things back as they were, for example:
- get the landlord to allow the tenant back in
- change the locks back
- give the tenant a key.
Police officers should not get involved in civil disputes about matters such as rent or repairs. These are unlikely to be relevant to the criminal law.
If the tenant has been unlawfully evicted, they can bring a claim in the County Court for an injunction and damages. A specialist adviser or solicitor will be able to advise on this.
A County Court claim could include the following:
An interim injunction requiring the landlord to let the occupier back into the property (reinstatement) or to return the tenant’s belongings.
General damages for the distress and inconvenience of being evicted. The amount will vary according how serious and traumatic the eviction was, what alternative accommodation arrangements the tenant was able to make, how long it took the tenant to get back into the property or secure suitable long-term accommodation elsewhere.
Special damages for any financial losses, such as the cost of alternative accommodation, additional food, travel costs, and the value of any belongings damaged or not returned.
Damages under section 28 Housing Act 1988 for the statutory torts, where the occupier has been evicted and has not re-entered the property. Damages under this section are based on the difference between the value of the landlord’s interest in the property with the tenant having a right of occupation, and the value without this right. This is not usually significant for assured shorthold tenants.
Aggravated damages can be claimed where the landlord has behaved in a particularly unpleasant way, for example engaged in physical violence, or has ignored court orders.
Exemplary damages can be sought if the landlord intended to profit for the unlawful eviction. They are intended to punish or make an example of the landlord. This cannot be claimed in addition to s28 statutory damages.
Returning to the property
An application for an interim injunction for reinstatement must be brought urgently, usually within a matter of days. This is because:
- the tenant may not have alternative accommodation
- there is a risk the property will be re-let.
If a tenant does not wish to return due to concerns about personal safety or future evictions, they can still apply for:
- an interim injunction for the return of any belongings
Legal aid is available for bringing unlawful eviction claims, as long as the tenant meets financial eligibility thresholds. Legal aid covers bringing an action for an injunction and damages, including damages only claims.
The Legal Aid Agency will:
- apply their costs and benefit criteria, weighing up the likely amount of the damages against the likely legal costs
- look at the likelihood of actually recovering damages.
Because of this, only serious cases are likely to get funding and enquiries into income and assets of the landlord may be necessary.
If an interim injunction is being sought, legal aid can be granted on an emergency basis using delegated functions if appropriate.
It can be difficult to find a solicitor with capacity to take on unlawful eviction cases, particularly if urgent work is needed. You are most likely to be able to refer successfully if you have clear instructions about:
- what happened
- the evidence in support of the client’s version of events, including witnesses, photographs, recordings, documents
- where the client is staying and how long this arrangement will last
- what has happened to the client’s belongings and any key items the client needs urgently
- details of the landlord and what is known about their financial circumstances
- the client’s means and whether they are eligible for legal aid
- what the client wants to achieve.
Conditional Fee Agreement (CFA)
Shelter can bring unlawful eviction claims under a Conditional Fee Agreement (CFA) for clients who are not financially eligible for legal aid.
A CFA will only be available where there:
- are strong merits
- is evidence that the landlord has means to pay any judgment and costs.
An unlawfully evicted tenant can contact their local authority’s tenancy relations or tenancy support team.
Tenancy relations officers can:
- put pressure on a landlord to stop an eviction
- arrange for the tenant to be readmitted to the property
- bring a criminal prosecution against a landlord who has carried out an unlawful eviction.
These services have been subject to austerity and in many areas little assistance is available, particularly in urgent cases.
Where reinstatement is not realistic, an unlawfully evicted tenant can be assisted with a homeless application, particularly if they are in priority need.
A landlord who is prepared to unlawfully evict a tenant may also have little regard to their other obligations. It may be worth investigating whether other obligations have been breached, such as the requirement to protect the deposit and give prescribed information, and any mandatory or selective HMO licensing requirements. Such breaches could lead to a significant damages award or a rent repayment order.
See Shelter Legal pages for details of illegal eviction and harassment, categories of excluded occupiers, civil legal aid scheme, homelessness applications, deposits, and houses in multiple occupation.