Free chapter from ‘A Practical Guide to Unlawful Eviction and Harassment’ by Stephanie Lovegrove

CHAPTER THREE:
UNLAWFUL EVICTION
(CRIMINAL OFFENCES AND
OTHER REMEDIES)

It is less common for private prosecutions to be brought against landlords or licensors in respect of criminal offences arising from unlawful eviction, primarily because Magistrates’ Courts tend to be reluctant to allow them to take up court time and costs are not recoverable even if a private prosecution is successful. The main circumstances in which a landlord would be prosecuted for such offences is where a complaint is made to a local authority which elects to take action (ordinarily this would happen as part of a broader strategy to improve housing standards within its area). This chapter looks at the criminal offences which are created in relation to unlawful eviction.


Protection from Eviction Act 1977, s.1(2)

By s.1(2), PEA 1977:

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”

Whether a residential occupant is “unlawfully” deprived of occupation is broadly dictated by the scheme of the Act. Both ss.2 and 3 of the PEA 1977 make eviction in prescribed circumstances unlawful: s.2 where it states that “where any premises are let as a dwelling on a lease which is subject to a right of re-entry or forfeiture it shall not be lawful to enforce that right otherwise than by proceedings in the court while any person is lawfully residing in the premises or part of them”; and s.3 which, in the context of a letting of a dwelling which is not statutorily protected or excluded under s.3A, provides it shall not be lawful for an owner to enforce against an occupier, otherwise than by proceedings in the court, the right to recover possession of the premises.

In addition, the commission of a tort would amount to an unlawful act e.g. any deprivation which also amounted to a trespass (such as not permitting an occupant entry) or a nuisance (such as creating noise or smells which had the effect of forcing a person to leave the premises) as would any breach of contract.


Premises

This is given a broad meaning: Thurrock UDC v Shina (1972) 23 P & CR 205, QBD; Uratemp Ventures Ltd v Collins (above) which has been held to apply to rooms with shared facilities and even caravans in some circumstances (in situ for 10 years and not easily moved): Norton v Knowles [1969] 1 QB 572, QBD.


Deprivation of occupation

Not every locking out amounts to an eviction for the purposes of s.1(1). In R v Yuthiwattana (Helen) (1985) 80 Cr App R 55; (1984) 16 HLR 49, one day and one night were not sufficient to amount to deprivation of T’s occupation of the room (albeit were sufficient to amount to harassment in breach of s.1(3) – see Chapter 4). In reaching this decision, the Court of Appeal had regard to (and rowed back somewhat) from the observations of Lord Evershed M.R. in Crown Lands Commissioners v Page [1960] 2 QB 274 where it was held that eviction “must be of a permanent character”. In Yuthiwattana, Kerr LJ held:

In our view “permanency” goes too far. For instance, if the owner of the premises unlawfully tells the occupier that he must leave the premises for some period, it may be of months or weeks, and then excludes him from the premises, or does anything else with the result that the occupier effectively has to leave the premises and find other accommodation, then it would in our view be open to a jury to convict the owner under sub-s (2) on the ground that he had unlawfully deprived the occupier of his occupation. On the other hand, cases which are more properly described as “locking out” or not admitting the occupier on one or even more isolated occasions, so that in effect he continues to be allowed to occupy the premises but is then unable to enter, seem to us to fall appropriately under sub-s (3)(a) or (b), which deal with acts of harassment.”


“Residential occupier”

Section 1(1) defines “residential occupier”, in relation to any premises, as a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises. This covers an incredibly broad spectrum of potential occupiers including statutorily protected tenancies, leaseholders, those who cannot be evicted without a court order pursuant to s.3, PEA 1977, licensees and even some trespassers if in adverse possession (which is a complex area in itself and beyond the scope of this book).


Offence

A person guilty of an offence under s.1(2), PEA 1977 is liable on summary conviction, to a fine not exceeding the prescribed sum or to imprisonment for a term not exceeding 6 months or to both; and on conviction on indictment, to a fine or to imprisonment for a term not exceeding 2 years or to both: s.1(4).

Nothing in s.1(2), PEA 1977 prevents civil proceedings being taken against an offender: s.1(5).

As the offence is triable either way, there is no requirement for an information to be laid before the Magistrates’ Court within six months of the offence: s.127(2), Magistrates’ Courts Act 1980.

Penalties for the offence are notoriously low compared to damages awards in civil proceedings. By way of example, in a case in the Oxford Magistrates’ Court and prosecuted by Oxford City Council, a fine of £180 was imposed for an unlawful eviction and £300 for a campaign of harassment. Between April and June 2014, the offender – along with family members – had repeatedly threatened the tenant with violence and then locked him out of his home by changing the lock to the front door.


Companies

A company can be guilty of an offence under s.1(2), PEA 1977 committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager or secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity. In such circumstances both the company and the individual concerned are guilty of the offence: s.1(6).


Defence

It is a defence to prove that the accused believed, and had reasonable cause to believe, that the occupier had ceased to reside in the premises. This must be shown on the balance of probabilities. Whether the accused held that belief and whether it was reasonable for him to hold it are matters for the jury to decide: R. v Davidson-Acres (1980) Crim LR 50, CA.

Rent repayment orders

The First-tier Tribunal has power to make a rent repayment order against a landlord in England who has committed an offence under PEA 1977 s.1(2), where the offence took place on or after 6 April 2017: s.40, Housing and Planning Act 2016. The power does not depend on a conviction but in the absence of a conviction, the applicant will need to prove his case beyond reasonable doubt: A tenant or a local authority may apply for such an order within 12 months of the offence: s.41, HPA 2016. In the absence of exceptional circumstances (see s.46), a tenant will be able to recover any rent paid, not including any benefit element: s.44, HPA 2016.


Criminal Law Act 1977

By s.6(1), CLA 1977, 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 there is someone present on those premises at the time who is opposed to the entry which the violence is intended to secure; and the person using or threatening the violence knows that that is the case.

There is an exception to the above offence: namely where the person threatening violence is a displaced residential occupier or a protected intending occupier of the premises in question or any person acting on their behalf: s.6(1A).


Displaced residential occupier

A “displaced residential occupier” is any person (except a trespasser) who was occupying any premises as a residence immediately before being excluded from occupation by anyone who entered those premises, or any access to those premises, as a trespasser, so long as he continues to be excluded from occupation of the premises by the original trespasser or by any subsequent trespasser: s.12, CLA 1977.

Protected intended occupier

A “protected intended occupier” is, in broad terms, an individual who requires the premises for his own occupation but is prevented from taking up occupation by a trespasser. The individual must be a freeholder or a leaseholder (whose lease has at least two years to run) with a sworn statement to this effect; a tenant or licensee of a local authority, a registered provider of social housing or a registered social landlord with a certificate from the landlord to this effect; any other tenant or licensee of a freeholder or a leaseholder (whose lease has at least two years to run) with a sworn statement to this effect: s.12A, CLA 1977.


Banning orders

From 6 April 2018, a local authority will be able to apply to the First-tier Tribunal for a banning order against a person who has been convicted of a banning order offence which took place after that date: s.15, HPA 2016. The First-tier Tribunal can make a banning order against that person if that person was a residential landlord or property agent at the time the offence was committed: s.16, HPA 2016. By s.14(3), the Secretary of State could specify by regulations the types of offences to which these provisions would apply. By the Housing and Planning Act 2016 (Banning Order Offences) Regulations 2017 (still in draft at the time of writing) the offences which give rise to the power set out above include:

  • s.1(2), (3) and (3A), PEA 1977 and s.6(1), CLA 1977 unless the sentence imposed on the person convicted of the offence (“the offender”) is an absolute discharge or a conditional discharge; and

  • s.2, PHA 1977 if:

  1. the offence was committed against or in collusion with a tenant occupying any housing (or another person occupying that housing with the tenant) or the offence was committed at or in relation to that housing;

  2. at the time the offence was committed, the offender was the residential landlord or property agent of that housing or an officer of a body corporate who was the residential landlord or property agent of that housing; and

  3. the offender was sentenced for the offence in the Crown Court.

 

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