Monday, March 21, 2016
Harassment of tenants by landlords or their agents - Protection from Eviction Act 1977
In this article we will look at the offence of unlawful harassment set out in section 1 of the Protection from Eviction Act 1977. This Act was brought about in response to the actions of slum landlords in the mid 1970’s in threatening rent protected tenants. The world has moved on significantly since then and the act is often used by councils against honest landlords and agents acting in good faith on behalf of their clients.
From my experience I have found that allegations of harassment tend to stem from the failure of a landlord or agent to adopt the usual, and in many cases correct, approach of evicting by means of a properly obtained court order. Of course the factual background to each case will be different however it is possible to briefly outline what the legal position is.
Unlawful Harassment under the Protection from Eviction Act - what needs to be proved?
The offence of harassment requires each of its elements to be proven by the prosecution, namely the relevant acts performed with the necessary intent. The prosecution must prove the elements to the extent that the Magistrates or jury are sure. The standard of proof in criminal cases is high, if there is reasonable doubt about any element of the offence the proper verdict is one of not guilty.
Section 1 of the act provides what is known as a statutory defence, this means that there is a specific line of defence recognised by an act of parliament. Proving a statutory defence is very different to proving the elements of the offence itself. It is for the defence to establish the elements of the statutory defence once the prosecution have proven the elements of the offence; to this extent it is for the defendant to prove their own innocence.
The reversal of the usual burden of proof is counterbalanced by the fact that the defence needs only be proven on the balance of probabilities, meaning that it must be shown to be more likely than not. The balance of probabilities is a significantly lower standard than that faced by the prosecution of making the tribunal of fact sure ‘beyond all reasonable doubt’. Successfully establishing a defence on the balance of probabilities allows for an element of doubt. ‘Probable’ is less than ‘sure’, but is enough for the purposes of the statutory defence and therefore acquittal.
The Residential Occupier:
Harassment can only be committed against the ‘residential occupier’. The term is given a wide definition by section 1 subsection 1 of the act that defines the phrase as:
“a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises.”
This necessarily includes, but is not limited to, those in occupation of a property by virtue of a lawful tenancy agreement.
Unlawful harassment: the act
Section 1 subsection 3A of the act relates exclusively to landlords and their agents, unlike the more general offence of harassment set out at subsection 3. Subsection 3A sets out two categories of acts performed by a landlord or agent that fall within the scope of the offence, namely if:
“(a) he does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or
(b) he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence.”
It was held in R. v. Qureshi  2 Cr.App.R. 25, CA that the offence requires the landlord or agent to have themselves participated in the performance of the act. The requirement of participation has an impact upon the possibility of a landlord or agent being held vicariously liable (responsible in law) for the acts of their employee; a closer level of ‘orchestration’ or ‘control’ is required to establish liability.
Unlawful harassment: the mental element
Performing an act set out in section 1 subsection 3A does not of itself amount to a criminal offence unless that act is accompanied by a specific state of mind, namely that the landlord or agent:
“ … knows, or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises.”
It is of note that the offence does not require the conduct to actually result in the giving up of occupation, nor does it require the landlord or agent to be sure that such a consequence will occur, all that is required is foresight that such an outcome is likely to stem from their actions. The prosecution must of course show to the requisite standard that the defendant knew or had cause to believe that the conduct would cause the occupier to leave the premises. If the conduct was for some other reason such as to secure rental monies and the conduct was not likely to make the occupier leave then the defendant is not guilty of the offence.
An example is that these sorts of cases are often brought when the landlord or agent vigorously pursues the tenant for back rent. This is not harassment under the act unless the conduct is likely to cause the occupier to leave and the landlord or agent knew or believed that it was likely to happen. In other words mere pursuance of rent without pressure to leave the premises is unlikely to lead to a conviction.
What are the defences to unlawful harassment:
Section 1 subsection 3B provides a statutory defence if the landlord proves:
“…that he had reasonable grounds for doing the acts or withdrawing or withholding the services in question.”
The defence requires the objective application, to the circumstances in question, of what a reasonable person would consider to be grounds warranting the acts. In other words the defence amounts to having a common sense justification for conduct that would otherwise be an offence under subsection 3A.
How offences under section 1 are tried in England and Wales:
Offences under section 1 of the act are ‘triable either way’, this means that a trial can take place in either the Magistrates’ Court or the Crown Court. Depending upon the seriousness of the allegation, the defendant may be given the option of deciding which court they would prefer to be tried in. The choice of venue can have serious implications and so quality legal advice should be sought in relation to the ‘pros and cons’ of each court.
The maximum sentence for an offence under section 1 of the act is two years imprisonment in the Crown Court and six months imprisonment in the Magistrates’ Court. Maximum sentences reflect the appropriate sentence for the most serious examples of the offences, as such the majority of cases will attract significantly lesser sentences many of which will be noncustodial such as a fine.
If you have been accused of harassment it is vital that you seek professional advice. The sooner you receive legal advice the better. If possible it is always preferable to discuss your case with a barrister before you are charged or before a decision is made over whether to attend at interview. Offences under the Protection From Eviction Act can involve complicated legal arguments on both the law of property and criminal law. Quentin Hunt is an expert at dealing with this highly technical area of law and has a track record of defending high profile clients facing serious allegations. Contact Quentin for a free initial conversation about your case.