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:
- Where under the terms of the licence / tenancy the occupier shares any accommodation with the landlord or licensor and immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part. (section 3A(2))
- Where under the terms of the licence / tenancy the occupier shares any accommodation with a member of the family of the landlord or licensor and immediately before the tenancy or licence was granted and also at the time it comes to an end, the member of the family of the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part and immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises in the same building as the shared accommodation and that building is not a purpose-built block of flats. (section 3A(3))
- Where the tenancy or licence as granted as a temporary expedient to a person who entered the premises in question or any other premises as a trespasser (whether or not, before the beginning of that tenancy or licence, another tenancy or licence to occupy the premises or any other premises had been granted to him) (section 3A(6)).
- Where the tenancy or licence confers a right to occupy for a holiday only (section 3A(7)(a))
- Where the tenancy or licence is granted otherwise than for money or money’s worth (section 3A(7)(b))
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.
David Lewis-Hall | Property
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