First, an important warning. Under section 1(2) of the Protection from Eviction Act 1977 (“the 1977 Act”) it is a criminal offence for any person to unlawfully deprive (or even attempt to deprive) a residential occupier of any premises of his occupation of those premises. It is a defence for the person charged to prove that they believed and had reasonable cause to believe that the residential occupier had ceased to reside in the premises. Important to repeat – the burden is on the person who carried out the eviction to prove that they believed this and to prove that they had reasonable grounds to believe it.
A person convicted of an offence under section 1(2) of the 1977 Act is potentially liable to an unlimited fine and/or imprisonment for a term not exceeding 6 months, if the case stays in the Magistrates’ Court, or 2 years if it is sent to the Crown Court.
By section 3(1) of the 1977 Act it is unlawful for an owner to enforce a right to recover possession, otherwise than by proceedings in the court, unless the tenancy is an ‘excluded tenancy’.
You may therefore be entitled to take possession without a Court order where the licence or tenancy is an ‘excluded’ one. To be ‘excluded’ it will need to fall within the various categories set out in section 3A of the 1977 Act, which in summary are:
There are further exceptions for local authorities and others who have provided housing to comply with their obligations under various statutes / for immigration purposes.
It is clear that the requirements for being entitled to evict someone without going to Court are strict and exacting. There will always be a risk of the argument being made that the strict criteria were not met and that the eviction was therefore unlawful.
In sum, it will always be best to err on the side of caution and seek a Court order for possession if you have any doubt that your situation falls within one of the limited exceptions or there is a chance that the tenant is likely to argue that it did not meet the statutory criteria.
If you would like help with a potential possession claim, please read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best able to help you.
You can find the Protection from Eviction Act 1977 here: https://www.legislation.gov.uk/ukpga/1977/43.
Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.
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