ADVISER: Assisting with allegations of unlawful evictions

24 August 2016

The dedicated advisers on our housing helpline answer calls from the public from 09:30 until 14:30 Monday to Friday. Recently, they’ve had quite a few calls from tenants who’ve been asked by a landlord to vacate their homes in a matter of days. We’ve also spoken with a few people who have been evicted illegally and thought now might be a good opportunity to review the procedures that landlords must follow in order to regain possession of a property from a private tenant.

Advising clients threatened with eviction

In one recent case, our adviser Amy spoke with Barry, a private tenant living in County Tyrone. Barry had rented a property a year ago and had originally signed a six-month tenancy agreement. No new contract was issued after this six-month term lapsed and Barry continued living in the property as a periodic tenant, with his new monthly tenancy renewing each month.

In June, Barry lost his job and started to experience budgeting problems. He was late with July’s rent as a consequence and missed August’s rent payment entirely. Several days after the August rent payment was due, Barry received a text message from his landlord telling him to vacate the property by the end of the week as the landlord had a right to evict Barry for rent arrears.

Amy explained Barry’s rights to him and then contacted Barry’s local council on his behalf. She spoke to an environmental health officer at the council who, in turn, contacted the landlord to advise him that the action he was threatening was illegal and to explain the correct legal process that the landlord was required to follow.

Several days later, Barry contacted us again to confirm that he has now received written notice to quit from the landlord and is making plans to vacate the property and to move in with his sister until he finds work again and can afford to move out on his own. Amy discussed his housing options, including advising him on his right to access housing benefit to help with his rent payment and gave him some information to help him organise a repayment plan with his landlord to sort out the arrears.

Landlords who are not well versed in the laws relating to private tenancies may assume that they are entitled to recover possession of their dwelling if the tenant has breached the terms of the agreement. However, landlords must observe the proper legal process in all cases, even if the tenant has stopped paying rent or is causing antisocial behaviour or damage to the property.

Correct legal process for evicting private tenants in Northern Ireland

A landlord who wishes to evict a tenant must follow the correct process. This begins with serving written notice to quit, which must be received by the tenant a fixed number of days before the date it is due to take effect. Once the notice period expires, the landlord can bring legal proceedings in order to obtain a possession order and this possession order must be enforced by the Enforcement of Judgments office if the tenant does not leave the property.

Notice to Quit

A notice requiring a tenant to quit a rented property must be in writing. There is no standard form for a notice to quit letter, beyond the requirement that it be in writing. However, a notice must adhere to certain timeframe requirements in order for it to be valid.

Article 14 of the Private Tenancies Order (NI) Order 2006 contains provisions relating to the length of advance written notice that a tenant must receive. This was amended by the Housing (Amendment) Act (NI) 2011 and the minimum amount of notice required is now

28 days for tenancies which have been in existence for less than 5 years
8 weeks for tenancies which have existed for between 5 and 10 years
12 weeks for tenancies which have existed for longer than 10 years.

The time period relates to the time between the date when the tenant could reasonably have been expected to receive the notice letter and the date when they must vacate the property. In the cases of a posted letter, case law holds that the landlord should allow a minimum of two days for postage. So, a landlord or tenant who posts a notice to quit on the 1^st of the month anticipating that they can leave on the 29^th of the month has not served sufficient notice.

Common law holds that a notice to quit must expire on a “fair day” or the day before the day on which rent is due. In order to be valid, a notice to quit should expire on the final day of a rental period.

Where an insufficient period of notice has been served, it is not enough to merely amend the original notice request by appending additional days to it. A judge may question the validity of this notice at court and so it is in the landlord’s interests to serve a fresh notice to quit which complies with the minimum time requirements.

Obtaining a possession order at court

If a tenant stays in the property after the expiry of the notice to quit period, the landlord can begin legal proceedings to recover the property from the tenant.

A landlord must apply to the court for an Order for Possession. Tenants can appear at the court hearing, but the tenant’s ability to impact the outcome of the hearing will depend on whether he or she has a fixed term contract, which has not yet expired.

If the tenant has the protection of a contract, he or she can present a defence to the proceedings. The landlord will have to show that the tenant has breached the contract and the judge will then decide if it is reasonable to grant the possession order.

Where a tenant’s tenancy has expired, or where a tenant does not have a contract but has been in the property for longer than the default six-month term, the judge will have no authority to refuse the landlord’s application for a possession order. The added risk to tenants in this position is that the judge may order that the tenant must pay the landlord’s costs.

Enforcing a Judgment

Once a possession order has been granted, the landlord must apply to the Enforcement of Judgments Office to have this order enforced if the tenant has not vacated. The enforcement court will issue the tenant with a Notice of Intention to Enforce a Non-Money Judgment. At this stage, the tenant can

choose to leave the property voluntarily or
may decide to remain and to wait to be forcibly evicted from the property or
may attempt to have the matter referred back to court.

Tenants in this position should seek advice immediately. Referring the matter back to court can be expensive and tenants will need to have a strong case for this type of action to be successful. Choosing to remain in the property and to wait for an eviction could result in the tenant being ordered to pay more court fees.

Officers from the Enforcement of Judgements Office will carry out the actual eviction if the tenant has not voluntarily left the property.

The eviction process currently has a number of stages and it can take a considerable amount of time to satisfy the process fully. While this safeguards a tenant’s right to remain in possession of the tenancy, landlords have concerns that the process is overlong and expensive. One of the ideas that is being discussed as part of the Department for Communities’ wider private rented sector review is whether an accelerated eviction process should be introduced in Northern Ireland.

Protection from Harassment and Unlawful Eviction

It is a basic right of all tenants to be free from harassment and illegal eviction.

Harassment and illegal eviction are defined under Article 54 of the Rent Order 1978, as amended by Article 60 of the Private Tenancies (NI) Order 2006.

The legislation states that harassment occurs where a landlord or agent:

does acts ‘likely’ to interfere with the peace and comfort of the tenant or members of the household; or
persistently withdraws or withholds services which are reasonably required for the occupation of the property;

AND

knows or has reason to believe that the conduct is likely to cause the tenant to give up occupation of the premises or refrain from exercising any right or pursuing any remedy.

The legislation states that an unlawful eviction occurs when a tenant is deprived of the occupation of all of his /her tenancy without due process of law. So, any attempt to forcibly recover possession of a property without going through the legal steps outlined above would constitute an unlawful eviction.

How councils can assist tenants who are concerned about unlawful evictions or harassment

The Private Tenancies (NI) Order 2006 gives local councils powers to investigate allegations of harassment and unlawful eviction. The council’s environmental health department may prosecute a landlord if they believe an offence has been committed.

A tenant should contact their local council’s environmental health team immediately if their landlord has threatened to evict them and has not followed the correct lawful process. As in Barry’s case above, the council can contact the landlord and explain the landlord’s legal obligations in an attempt to prevent any illegal action from taking place.

The legislation does not place an onus on local councils to seek an injunction where a landlord has illegally changed the locks on the property. However, a tenant can seek an injunction to allow them back to the property.

Remedies for Harassment and Unlawful Eviction

Tenants who have been victims of harassment or unlawful eviction can pursue criminal and civil remedies.

Criminal Proceedings

Local councils have powers to prosecute landlords who have harassed or unlawfully evicted a tenant. A landlord prosecuted in the Crown Court could receive a criminal fine. When an incident is reported to the council’s environmental health team, the council should arrange to interview both the tenant and the landlord before deciding whether to prosecute.

If additional offences have been committed, such as physical assault, burglary or a breach of the peace, these should be reported to the police who will take appropriate action.

Under the Protection of the Person & Property Act (NI) 1969 it is an offence to cause a person by force, threats or menace to leave their home. This law was introduced to deal with the specific threats involved in paramilitary intimidation but it is drawn in wide terms and could be applied in other circumstances, including situations involving licensees.

Civil Proceedings

Someone who has been a victim of harassment or illegal eviction may be able to seek a civil remedy in the County Court or High Court instead of, or in addition to, a criminal remedy. These courts can award compensation. The court may also grant an injunction to allow the tenant to re-enter the property. In such circumstances, the incident must be “slotted” into existing civil law categories. For instance, the landlord may be in breach of contract, which allows the tenant ‘quiet enjoyment’ of the property. In addition, there may be an action in tort for trespass to land, trespass to goods, and trespass to the person or nuisance.

The tenant could also take action through small claims court to recover any money he or she is owed as a result of the unlawful eviction, such as the return of a deposit or overpaid rent. However, small claims courts cannot consider claims for compensation.

Landlords who suspect a property has been abandoned

A landlord may have reason to suspect that a tenant has abandoned a property. This could happen if

the tenant has stopped paying rent
the landlord has been notified that the tenant’s housing benefit claim has stopped or
a neighbour has notified the landlord that the property is empty.

Although a tenant may appear to have left the property, the tenant retains his or her legal right to occupy this property until this right is brought to an end under the correct legal process. Landlords risk prosecution if they change the locks on a property without obtaining a possession order. To minimise this risk a landlord, who believes that a tenant has vacated a property, should contact the council before taking any action explaining the situation and advising the council about his or her intentions to recover possession and secure the property.

The landlord must also be very careful about what he or she does with any possessions left behind by the tenant. Although these may seem to be of little or no value, the landlord is responsible for looking after these belongings and a tenant could take action against a landlord if the items are not returned.

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