It is in many ways unfair. Here is a tenant, living in the landlords property and paying no rent, The landlord meantime, still has pay the mortgage, is responsible for keeping the property in repair, and cannot repossess without getting a court order, which normally takes four to five months.
However, despite all this, a landlord is *not* entitled to go in and take the tenants possessions. Not to sell, not to hold as security. The car, the television set, the computer – they belong to the tenant, and the landlord has no rights over them. If he takes them and sells them, this is both a civil wrong and a criminal offence.
There are certain situtions in law, where someone is entitled to a ‘lien‘ over someone eles’s property. This means that they are entitled to hang on to it until they get paid. Hotel owners, I understand, have a lien over guests luggage. Solicitors have a lien over clients paperwork. There are also liens, I believe, in aviation and maritime law. However, so far as I am aware, landlords are not entitled to any lien over their tenants property, however much rent the tenant may owe. Unfair perhaps, but true.
The only person who is entitled to seize and subsequently sell, another persons property, is a County Court Bailiff or High Court Sheriff, acting under a court order.
It is arguable perhaps that if the landlord takes the property, a tenant might find it difficult to recover it through the courts, as the landlord could counterclaim for his rent arrears, and seek to offset any damages awarded to the tenant against the rent arrears owed to him. I am not sure however how successful this would be – and it is not a course of action which any lawyer would normally recommend.
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I have always liked this one. In a sense though it is less an urban myth than a misunderstanding. The right to take tenants goods against rent arrears is called distress and can be exercised in relation to commercial tenants. It just cannot be exercised in relation to the majority of residential tenants. I frequently find that this is a case of bad advice by lawyers who have studied commercial landlord and tenant law but not residential.
Yes, I should have mentioned distress. Thank you.
You used to be able to use distress against residential tenants with leave of the court (maybe you still can), but if you are gonig to all the trouble of applying to the court, you might as well go the whole way and apply for possession.
Although about 20 years ago I did apply for distress as an experiement against some Rent Act tenants who were virtually unevictable, and it did perusade them to pay up! They soon fell into arrears again though.
Hi Tessa, would it be possible to put something into the tenancy (or the lodger agreement if that’s the setup) which gave the landlord a lien?
Interesting question. In a normal tenancy probably not. The reason being that the tenancy will, in most cases, be subject to the Unfair Terms in Consumer Contracts Regulations 1999, and these regulations provide (more or less) that if there is a clause which changes a tenants legal rights to the tenants detriment, this will normally be void.
A lodger agreement would probably be OK, as in most cases the landlord would not be acting in the course of a business, so the regulations would not apply. However as some lodger landlords may take in lodgers as a business, I don’t think it is something that could go in an agreement which was going on sale.
What do other lawyers think?