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Illegal Eviction: what is it and what are the consequences?

Sep 7, 2018

When a landlord wishes to evict their tenant, it will not be a decision they have reached lightly and will invariably be the last resort.  There could be various reasons why they wish to do this, but there are also various steps they must follow to ensure any subsequent eviction is legal.  Daniel Coleman, Solicitor in our Litigation and Dispute Resolution team, explains the correct steps for landlords and the legal consequences if they do not evict their tenants legally.

What makes an eviction illegal?

The law in this area is very specific in its procedures for eviction of any tenant who has an assured shorthold tenancy agreement.  Landlords must also remember that tenants are covered by the Protection from Eviction Act 1977 to ensure the processes and notice periods are adhered to. 

The most common type of private tenancy is the Assured Shorthold Tenancy (AST), which applies to most private home rental agreements undertaken after 1989.  For termination of an AST the following steps must be followed:

  • Correct notice must be given to your tenant. The most common methods are via a Section 21 notice for eviction after the end of a fixed term, or a Section 8 notice for eviction because the terms of the tenancy have been broken.  Find out more here about section 21 notices and how they could be invalid.
  • You must acquire a standard possession order from the courts.  In making an order, the Court will specify the date on which the tenants are to vacate the property, failing which a landlord will be required to instruct the assistance of a bailiff.
  • You must acquire a warrant for possession if your tenants will not leave.  The warrant for possession gives the bailiff permission to attend the property and use reasonable force to remove the tenant.

While at first glance this may look straightforward, the reality is that eviction is a lengthy legal process that is designed to protect the tenant from unscrupulous activity.  It is also extremely important that you get the notice right on the first occasion, as otherwise this can cause significant delay as well as incurring costs which are likely to be unrecoverable. 

Your tenant has the right to challenge the eviction notice, which would be allowed in a range of reasons; from minor errors such as misspelling a name on the tenancy or not using the correct form, through to more significant mistakes including omitting to supply a Gas Safety Certificate, failure to protect a tenant’s deposit or giving an incorrect notice period.  The rules vary according to whether the tenancy is a periodic or fixed term, so you must be aware of the specific details pertaining to the tenancy you offer before taking any of the steps outlined above, as any errors here could prevent you from regaining possession of your property or lead to an outcome of illegal eviction.  

The law 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 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 you are found guilty of illegal eviction, you will face a fine and in some cases a jail term.  The fine will not be the only financial impact as you may be required to pay compensation to your tenant if you have not followed the correct procedure.  

When calculating the compensation, the courts will consider the impact that illegal eviction has had on the tenant, looking at the amount of time they have 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.  In addition to this compensation, your tenant has the right to remain in the property.  This will be particularly frustrating for you if the reason for an upheld challenge is due to an avoidable mistake such as an incorrect date on a form.

“For landlords who are seeking to evict their tenant, the temptation can be to move quickly to find a new tenant as soon as possible,” explains Daniel.  “As presented here however, this desire to remove the tenant quickly could leave you open to severe financial obligations, or even time in prison.  We would always recommend you seek legal advice before taking any steps towards evicting your tenant so as to avoid any unnecessary delay or wasted costs, but also to avoid any claim of illegal eviction which could have far more serious implications.  If the only answer is to proceed with eviction, we can advise you as to the correct paths to take when serving notice, and can guide you through the complicated forms and supporting paperwork required to make an eviction legal.”

If you are in disagreement with your tenant and looking for a resolution, you can contact Daniel or the team on 023 8071 7487 or email danielcoleman@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.