Tag Archives: landlord

News

‘Unlawful Eviction’ – the law, defences and penalties

So called ‘Rogue landlords’ are frequently in the news for allegedly charging tenants too much money, refusing to release a deposit or being responsible for an unlawful eviction.

What is meant by ‘unlawful eviction’?

The statutory starting point is the Protection from Eviction Act 1977.

Section 1(2) states when someone is guilty of this offence of unlawful eviction:

“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 is 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.”

Elements of the offence of unlawful eviction and key players

The terms ‘eviction’ and ‘deprivation’ have been interpreted in a relatively intuitive manner by the courts, a key factor being the lack of access.

In Yuthiwattana (1984) 80 Cr App R 55 the court looked at differing levels of access deprivation and stated:

‘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 subsection (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 subsection (3)(a) or (b) , which deal with acts of harassment.’

Someone does not necessarily have to be a tenant to be a residential occupier.  It is possible to gain protection as a contractual licensee, as set out in the case of Thurrock Urban District Council v Shina (1972) 70 LGR 184.

But I had a good reason to deprive someone of their access, how do I show this?

If you are accused of unlawfully depriving someone of access to their property in the manner described above, it is for you to prove that you “believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.”

This would only avail a landlord of a defence where the tenant had removed all physical signs of possession from the premises and where the landlord had good reason to believe that he would not be returning. The reason for this is that “possession” is synonymous with “occupation”, meaning something more than physical presence.

Before possession can be obtained of residential premises, in all cases other than where there has been voluntary vacation, there must be a court order. This will also be the case for tenants protected by the Rent Acts or Housing Act 1988, as well as for restricted contracts where a licence only is granted.

What are the penalties for this offence?

The offence carries a maximum punishment of two years’ imprisonment and/or an unlimited fine and can be tried in both the magistrates’ and crown courts.

How can we help

unlawful eviction
Crime and regulatory solicitor Martin Hadley

If you are concerned about allegations of unlawful eviction or other alleged offences relating to landlords and tenants, then please contact crime and regulatory solicitor Martin Hadley on 0115 9599550 at our Nottingham office.  Alternatively you can use the contact form below.

Although we won’t be the firm that will have drafted any letting agreement that you have, we are a firm that specialises in criminal defence and will therefore ensure that any allegations arising from any tenancy will be strongly defended on you behalf.  This will include advice and representation in any interview under caution, whether with the local authority or the police, and court representation.

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News

Rogue Landlord Banning Orders – new provisions from April 2018

The government has recently announced that it intends to bring into force a number of provisions contained within the Housing and Planning Act 2016 including banning orders.

From 6 April 2018 the Act will allow local authorities to apply for a banning order where a landlord has been convicted of a ‘banning order offence.’

What is a banning order?

A banning order will ban a person from:

  • letting housing in England,
  • engaging in English letting agency work,
  • engaging in English property management work, or
  • doing two or more of those things.

The banning orders will operate whether a landlord acts on their own behalf or via a corporate body.

What offences might prompt an application for a banning order?

The following offences are capable of triggering an application for a banning order as they are banning order offences:

Any offence involving:

  • fraud
  • the production, possession or supply of illegal drugs
  • violent and sexual offences

will be appropriate banning order offences subject to there being a link between the property being rented out and/or the tenant/household.

The offences below (subject to there being a link between the property being rented out and/or the tenant/household) are also on the list of banning order offences:

  • An offence under sections 327-329 Proceeds of Crime Act 2002.
  • An offence under sections 2 or 2A Protection from Harassment Act 1997.
  • An offence under sections 30 or 48 Anti-social behaviour, crime and Policing Act 2014.
  • An offence under sections 7, 9, 21 or 22 Theft Act 1968.
  • An offence under sections 1(1) or 2 Criminal Damage Act 1971.
  • Illegally evicting or harassing a residential occupier in contravention of the Protection from Eviction Act 1977 or the Criminal Law Act 1977.

Offences under the Housing Act 2004 that will trigger banning orders

Unsurprisingly, any of the following offences under the Housing Act 2004 are also relevant offences for banning orders:

Failure to comply with an Improvement Notice

Offences in relation to licensing of Houses in Multiple Occupation (HMOs);

Offences in relation to licensing of houses under Part 3 of the Act;

Allowing a HMO that is not subject to licensing to become overcrowded;

Providing false or misleading information.

Failure to comply with management regulations in respect of HMOs;

An offence under the Health and Safety at Work etc. Act 1974 where a person contravenes section 36 of the Gas Safety (Installation and Use) Regulations 1998;

Failure to comply with a Prohibition or Emergency Prohibition Order under sections 20, 21 and 43 of the Housing Act 2004;

An offence under section 32 of the Regulatory Reform (Fire Safety) Order 2005.

Can a landlord argue against the making of a banning order?

Yes, you can make representations both to the local authority before the making of the application and to a tribunal if proceedings are commenced.

There are the following protections for landlords facing applications for banning orders:

Before applying for a banning order the authority must give the person a notice of intended proceedings.  This notice will inform the landlord that the authority is proposing to apply for a banning order and explain why.

The notice will also stating the length of each proposed ban, and invite the person to make representations within a period specified in the notice of not less than 28 days.

Once the notice has been issued, there are the following obligations:

  • The authority must consider any representations made during the notice period.
  • The authority must wait until the notice period has ended before applying for a banning order.

A notice of intended proceedings may not be given after the end of a period of 6 months.  This period begins with the day on which the person was convicted of the offence to which the notice relates.

What happens if a landlord breaches the banning order?

Breach of a banning order is a criminal offence.  It carries up to six months imprisonment and an unlimited fine. It is also highly likely that confiscation proceedings under the Proceeds of Crime Act 2002 will follow to recover income derived in breach of  banning orders.

How we can help you as a landlord

This type of law illustrates perfectly the often-hidden consequences of a criminal conviction.  To represent people properly, it is not enough that a solicitor understands only the main offence.  Any solicitor you choose will need a wider appreciation of the effects on a defendant.  Once these are understood, they will be fully considered during the planning of your defence.  As a result, it may not be the solicitor who handles a landlord’s property matters who is best placed to handle a criminal investigation.

Our highly experienced team can assist you in navigating the initial criminal proceedings that can give rise to the banning order application.  We also understand confiscation proceedings and skilled in the practice of negotiation with public bodies.

As a result, we will help you work towards the most favourable resolution in your case.

Contact crime and regulatory solicitor Martin Hadley

landlord banning orders
crime and regulatory solicitor Martin Hadley

Contact crime and regulatory solicitor Martin Hadley on 0115 9599550.  Alternatively you can use the contact form below.  You will then be able to discuss any allegations of criminal conduct arising out of your business as a landlord.

We will be able to provide you with free and independent legal advice if you are interviewed by the police, whether as a volunteer or under arrest.  This is because be have a contract with the government to provide criminal legal aid.

Martin will discuss with you your options for funding any interview with the local authority or court proceedings.

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News

Legal Advice to Landlords

Nottingham Crime and Regulatory solicitor Martin Hadley recently represented a landlord in interview relating to an alleged breach of regulations applying to a house in multiple occupation.

Inspection of a House in Multiple Occupation

The landlord had been visited by the local authority inspectors who had found shortcomings in the facilities offered within the property.  Martin’s client had successfully negotiated a period of time to make alterations to the premises to bring them into line with current legislation.

He had then employed a reputable contractor to undertake the works.  He knew the builder personally and had used him for many years.  As a result he believed that the work would be completed to the requested specification and paid for the works to be done.

As a result, the landlord had no reason to suspect that the premises would not fulfil the requirements of the local authority.

Builder’s Failure

Unfortunately a subsequent visit by the inspectors revealed that the works did not fulfil the statutory requirements and the landlord was invited by the Council for an interview at their offices. This was to be a recorded interview.  The purpose was to gather evidence for a potential prosecution.  Our client was to be cautioned at the start of the interview.

Understandably, our client was extremely worried about the interview.  Unfortunately, rather than instruct us immediately he instead instructed an expert to produce a report to show  the council that he had completed the works to the relevant statutory requirements for a house in multiple occupation.  Of course, he hadn’t.

Defence of Reasonable Excuse

Sadly, this expense was not needed.  The report could not address the defence that our client needed to put forward.  Once he received advice

Martin was able to advice him that he would be able to put forward a reasonable excuse for failing to comply with the statutory requirements, that being the instruction and payment of a builder of appropriate skill and experience to undertake the works.

In order to allow our client to budget for his legal fees Martin agreed a fixed fee.  Within this fee, Martin liaised with the local authority to find out the detail of the allegations that would be put in interview, and advised his client prior to interview.  This meant he was able to ensure that his client brought along a bundle of relevant papers to the interview.  The advice continued throughout the interview.

As a result the client was able to raise the necessary defence and support it with documentary evidence.  The council decided to take the matter no further.  No court proceedings were brought.

Contact Martin Hadley

This case illustrates the importance of taking early advice from a specialist lawyer in order to ensure that your case is dealt with efficiently and without incurring unnecessary expense.

If you are a landlord responsible for a house in multiple occupation and receive contact from the local authority please telephone Martin on 0115 9599550 or email him here.  He will be able to provide you with advice on how best to deal with the allegations and agree fees for affordable advice.

News

Homes in Multiple Occupation Regulations

Nottingham criminal solicitor and regulatory lawyer Martin Hadley represented a landlord client.  He  had been visited by local council Enforcement Officers. They were inspecting homes in multiple occupation to ensure that landlords were abiding by the duties imposed upon them by Section 234 of the Housing Act 2004.

The Management Regulations under this Act are designed to ensure that tenants are provided with safe, good quality housing. The regulations place a heavy burden upon landlords.

Homes in Multiple Occupation

A house in multiple occupation is a property rented out by at least 3 people who are not from 1 ‘household’ (eg a family) but share facilities like the bathroom and kitchen. It’s sometimes called a ‘house share’. You must have a licence if you’re renting out a large HMO .  Further information can be found here.

 

The client’s premises were visited whilst he was undertaking renovation works.

Unfortunately, however, he had failed to maintain:-

  • statutory notices
  • fire alarms
  • common parts in a safe condition
  • hand rails, or
  • boundary fences.

Interview Under Caution

The Council officers interviewed Martin’s client under caution and with a recording being made.  Sensibly, our client chose to instruct Martin prior to the interview and he was present to give advice and assistance throughout the interview process.

Martin’s client did not dispute the allegations.  Martin made representations to the council that this was a case that could be dealt with by way of a caution.  Such a warning would be taken into account if there were further allegations in the future and a prosecuting authority had to decide whether to bring court proceedings.

No Prosecution

The client was understandably happy with the outcome of the investigation.  Martin’s approach identified that although the matter was admitted there was an alternative to prosecution and secured the appropriate outcome.

Our client avoided what could have been an expensive day at court as it was likely that he would have had to pay a fine and the local authorities costs for investigating and prosecuting the matter.  In addition he would have received a criminal record.

Contact Martin Hadley

If you receive notice that you are under investigation by the local authority as a landlord with homes in multiple occupation, or for one of the range of offences that you can be prosecuted for then please contact Martin on 0115 9599550 or email him here.