Illegal Eviction: what is it and what are the consequences?
Illegal eviction is a criminal offence. The law is very specific and solid 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?
In short, if the correct steps have not been followed to the letter then an eviction could be deemed illegal. 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:
- Give notice. 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.
- Acquire a standard possession order from the courts.
- Acquire a warrant for possession if tenants will not leave.
At first glance this looks straightforward. The reality is that eviction is a lengthy legal process that is designed to protect the tenant from unscrupulous activity. A landlord must dig down into the detail of the tenancy to ensure the law is being followed. The tenant has the right to challenge the 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 rules vary according to whether the tenancy is a periodic or fixed term, and landlords must be aware of the specific details pertaining to the tenancy they offer.
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 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 the cost of compensation 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 around eviction means that a tenant 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 those most scarce of commodities; money and time.