The Consequences of Illegal Eviction
5th September 2018
Illegal eviction is a criminal offence. The law is very specific in its procedures for eviction of any tenant who has an assured shorthold tenancy agreement, and tenants are covered by the Protection from Eviction Act 1977 to ensure the processes and notice periods are adhered to.
What makes an eviction illegal?
The most common type of private tenancy is the Assured Shorthold Tenancy (AST), which applies to most private home rental agreements entered into after 1989. For termination of an AST the following steps must be followed:
• Give notice. The most common methods under the Housing Act 1988 are via a Section 21 notice of requirement for possession which cannot expire before the end of a fixed term, or a Section 8 notice which can be given during the fixed term because the terms of the tenancy have been broken.
• Obtain a standard possession order from the courts.
• Issue a warrant for possession if tenants will not leave.
At first glance this looks straightforward especially if the Accelerated Possession procedure is utilised. The reality is that eviction can sometimes be a lengthy legal process designed to protect the tenant from unscrupulous activity. The tenant has the right to challenge an eviction notice, and this challenge can be for a range of reasons. These can be minor details, such as misspelling a name on the tenancy or not using the correct form, to more significant errors like omitting to supply a Gas Safety Certificate or giving an incorrect notice period.
The law also protects tenants from eviction by harassment. Harassment is described as "anything a landlord does, or fails to do, that makes you feel unsafe in the property or which forces you to leave" (gov.co.uk 2018). Actions such as refusing to do repairs or stopping services are regarded as harassment, as well as more obvious actions such as making threats or anti-social behaviour. If a tenant can prove any harassment has taken place, then an eviction will be deemed illegal.
What are the consequences of illegal eviction?
If a landlord is found guilty of illegal eviction, they face a fine and in some cases a jail term. At first glance the fine can seem small, but when combined with compensation which can be awarded the financial impact on a landlord who has not followed the correct procedure is significant.
When calculating the compensation, the courts will consider the impact that illegal eviction has had on the tenant, looking at the amount of time the tenant has been homeless, as well as the consequence of any harassment or behaviour that has caused grievance to the tenant. The famous Cashmere v Walsh case resulted in the awarding of compensation of an astonishing £81,215. Whilst this is an extreme example, the financial consequence of not following the laws around eviction can be significant.
In addition to the compensation awarded by the court, the reality of ignoring the law means that a tenant often has the right to remain in the property. This is a fact that will be particularly frustrating if the reason for an upheld challenge is because of a foolish mistake such as an incorrect date on a form.
It is vital that landlords understand the laws around eviction and that the laws are in place to protect the tenant from becoming homeless. Being intrinsically aware of the details of their tenancy agreement and the consequences of not following the correct process will protect the scarcest of commodities: money and time.
Web site content note: This is not legal advice; it is intended to provide information of general interest about current legal issues.
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