Our regular guest blogger Ben Reeve-Lewis gives us the benefit of his experience with enforcing the harassment laws
Harassment, what harassment?
I recently had cause to talk to a landlord about allegations that their tenant was making against them that they had been harassing them, as I do frequently, only to encounter, for the umpteenth time, a tone of utter astonishment and indignation.
The usual stunned response to this question being “But how can I be harassing them?”….how indeed?
To most people’s minds the notion of landlord harassment brings up visions of broken nosed loan shark types with camel hair coats and baseball bats.
The shadow of Peter Rackman still looms large in people’s ideas about landlord harassment, and there are still quite a few of these characters out there. Most landlords aren’t that bad but even the most reasonable of people can find themselves falling foul of allegations of harassment, because it has a legal definition and can be more than just physical violence or threats.
Defining landlord harassment
Make no mistake about it harassment of a tenant by a landlord is a criminal offence, despite what most police officers door-stepping a dispute tell the protagonists. But what is often misunderstood is that the prosecution of landlord harassment cases is usually carried out by your local authority, not the police.
The law that sets out the definition of harassment in this context is the Protection from Eviction Act 1977, and it says this (the important bits are in bold):-
“The landlord of a residential occupier or an agent of the landlord shall be guilty of an offence 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,
and (in either case) he 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”.
Pay close attention to the word ‘likely’ in line 3 there. Originally, when the legislation was issued it said ‘With intent’. The problem was that hardly anyone got prosecuted for harassment because it is legally more difficult to prove a person’s intention. So the government amended the act some years later and replaced Intent, with ‘Likely’.
So, put simply the argument is, would it be apparent to a reasonably intelligent person that what they are doing could result in the tenant wanting to give up their accommodation? To really grasp this point the landlord has to put aside their sense of grievance and look at their actions from the tenant’s perspective. In doing so a different picture can form.
Out in the world
Here are some of the common complaints of landlord harassment that come by phone and interview every single day of the week in the housing advice world:-
· My landlord keeps calling me and pressing me to pay my rent arrears.
· My landlord insists on carrying out a property inspection every month and it is really getting me down.
· My landlord and her family came at the weekend and stood in the doorway telling me I had to pay the rent increase or they would throw me out.
· My landlord keeps coming to my property and taking things away. He took the fridge last week and now he has taken the microwave saying he needs it for another property and he will replace it but he never does.
· My landlord keeps sending me notes saying I will have to leave if I don’t clear my rent arrears.
Most landlords would think it reasonable to chase up their tenant’s rent arrears or to carry out regular inspections but, using these common examples above, the landlord has to ask themselves “If I was renting property and the landlord kept ringing me up saying “when are you going to pay?” would it make me want to give up my accommodation?”
You see, it is a widely cast net and many more actions run the risk of being construed as harassment than just violence and intimidation.
The council teams who have to investigate allegations are not daft and they can tell the difference between the hardcore stuff and situations we saw above but when a complaint is made they are duty bound to put the allegation to the other side. So if you receive a call of this kind, don’t be outraged. Imagine how annoyed you would be if you found out that these things were being said about you but you weren’t told?
Where are we going with this?
In his statement that the government would not proceed with regulation and licensing of private landlords, housing minister Grant Shapps said that there were enough laws already in place to deal with rogue landlords. He was talking mainly about the Protection from Eviction Act. And pressure is growing from a number of quarters for council’s to start taking a firmer line in matters of this kind.
The fact is that the majority of council officers responsible for taking action for harassment only really do so where the harassment involves violence or threats or other fairly extreme acts but are they now going to be pressured by managers to come up with more prosecutions, in the current and rather depressing obsession with performance statistics?
In practice it is very difficult to secure a conviction for harassment, and in my experience, apart from some landmark cases courts often don’t impose too much of a fine. I once prosecuted a landlord who went to a property and with 2 other men and waved a gun under the nose of a woman and her 3 children. It took me 2 years to get it into court and he was fined £400. to add insult to injury the judge refused our request for costs, which ran at around £8,500 if my memory serves me.
Most of the high damages you read about are awarded in civil cases where the same offences can be taken to court as what is called “Breach of covenant for Quiet Enjoyment” and that is something a landlord should be more worried about.
Civil claims are done and dusted in a lot less time than a criminal case, and the standard of evidence is far lower. For a successful; PFEA prosecution the council has to prove their case beyond all reasonable doubt but in the civil court a successful claim is based only on balance of probabilities. Also there are different categories of damages involved which can prove far more costly.
If a tenant owes rent arrears then the legal machinery is in place for the landlord to recover the arrears, through possession action. My advice to landlords reading this is don’t try to shortcut proceedings – keep all your actions above board.
There are plenty of resources to help you get the information and support, this website is one of them. Don’t leave yourself open to accusations. As I wrote in a previous article keep things strictly business and don’t take the actions of your tenant, including allegations of harassment, personally.
Remember, just because you don’t consider your actions to be harassing the tenant it doesn’t mean that the law would agree with you. And as I always stress to landlords, how infuriating would it be to take a tenant to court for rent arrears only to have them counterclaim for harassment and end up with you coming out of court owing them money rather than the other way around?
Ben Reeve-Lewis
About Ben Reeve-Lewis: Ben was the Tenancy Relations Officer for Lewisham Council for 11 years, prosecuting landlords for harassment and illegal eviction. Now he is a freelance housing law training consultant with a more balanced approach, delivering housing law courses for the Chartered Institute Of Housing, Shelter etc. His aim now is to help the housing world work as a interdependent system that benefits all
I disagree with the idea that the landlord has ample remedy.
Possession is a simple process but takes far too long to get to a hearing which arose from no action on the part of the landlord. When parting with an asset and given the protections of deposits “rent and forget” is receipe for disaster.
If the code of practice set out guidelines on inspections and notices to help both L & T, monthly inspections pre arranged eg first Monday of the month etc are not unreasonable, or anything to feel down about. Let those that complain becomes landlords and how quickly their tune changes.
And if you are being hassled for rent then pay it, or whne hte problem crops up, call the landlord and explain. If there is nothing you can do then suggest he goes to court to get possession. I see too many workers complaining how broke they are, over an expensive drink and surrounded by boutique bags.
I hear you Propman and what you are saying is a common landlord’s complaint.
I have every sympathy with your viewpoint too, if every tenant paid their rent on time and cooperated with landlords the whole letting business would be so much simpler but life just doesn’t work that way.
There is a thing called the ‘Housing Law Encyclopeadia’ which contains rules and regulations about these things. I have it in my office and it is 2 feet thick and weighs 26lbs (I know, I am sad enough to have weighed it) and the minute you hand over keys to a property you are suddenly caught up in those 6 volumes.
Renting out properties can be a lucrative business but like any business it carries with it certain risks. If you start up a cattle farm you are bound by impenetrable government regulations and run the risk of your herd contracting foot and mouth. If you go onto the stock market you are bound by financial regulations and run the risk of losing money.
The risks and annoyances of being a landlord is nightmare tenants and housing law. It goes with the territory.
Tenants always complain to me that the law is weighted in the landlords favour and landlords make the same complaints the other way around. Because I advise both parties I can see both sides and I can honestly say there are rights and obligations going in each direction.
Having said that I will say that although the law requires the landlord to follow due legal process for possession it often takes an age and in the case of rent arrears, if a tenant is hell bent on not paying, even when a landlord obtains an order from the court there is slim chance of actually getting that money back in practice. But again, as I said above these things are the annoyances of being in property letting
Funnily enough, whilst writing this a colleague has just asked me about a case she has where the tenant has reported a range of repairs to the landlord, leaking bath, water running down the walls in the living room but refuses to let the landlord in to do the repeairs, and at the same time is calling us to complain he isn’t doing them. Exasperating but that’s the business.
I have had the same problem with a tenant who complains about maintenance problems, makes an appointment for the workmen to fix them, then refuses to let them in because “something has come up” and she needs to be elsewhere at the appointed time. She is not in arrears because I insisted on a homeowner guarantor (she’s a jobless). Needless to say she moans to “the housing” that the repairs are not being done and that she is been “victimised” by my refusal to play her game any more. But, as you say, Ben, this goes with the territory. My rent is still being paid so I shouldn’t blub about it!
JR
A surprisingly common problem I find John. Although I am more than happy to prosecute a landlord who has beaten their tenants up (also surprisingly common) I do groan at the thought of having to warn landlords off when the tenant has reported them to be “Looking at me in a funny way”.
The other day a woman rang me and reported that her landlord was at the property ‘Intimidating’ her. I asked what he was doing or saying to intimidate her and she said “Nothing really” but he is physically big built and she finds that intimidating. I asked her why he was at the property and she told me he was fixing a gas problem she had reported………….Beggars belief.
When tenants dont allow access for repairs the landlord can go to court and obtain a thing called an Interim Rellief Order (IRO). Its a kind of injunction that will tell the tenant to let the landlord in. Costs of obtaining the injunction should be awarded agianst the tenant. Also bear in mind that if the tenant doesnt allow access for the repair and the property is damaged as a result then they will have not only breached their tenancy agreement but may also provide grounds for eviction on ‘Allowing the property to deteriorate”.
My reply here allows me the chance to re-emphasise the point I make in the article, that there are ample remedies available for landlords, it isnt all one sided……if you know what you are doing. A landlord can either learn this stuff or pay an agent to do it for them. The trouble with the latter is that most agents are clueless too.
If I was approaching an agent I would ask them 5 hypothetical questions regarding tenant problems and see what their answers would be. If they dont know the answers, dont sign up with them.
One man’s intimidation is another man’s robust discussion. It is such a nebulous concept – but a bit of a gift to a chancer tenant who has nothing to lose by hoping for a Guardian-reading judge.
Fortunately, most judges in my experience don’t let an eviction hearing get bogged-down by “yes you did” “no I didn’t” discussions.
Haha. Thats right mate. Landlords are often annoyed when I get them on the phone regarding tenant’s allegations but you have to allow for the fact that we deal with about 20 enquiries a day and it doesn’t take too long in the job to get a gut feeling for a genuine complaint against some complete nonsense, judges too. But we have to make that call because that is our job.
It is very rare that a landlord starts harassing a tenant out of the blue. It usually starts with rent arrears or some other tenant related problem. The only times I have come across unilateral harassment is where the landlord wants sell the property to take advantage of a good deal. In my experience, if a tenant pays their rent, keeps the property in good order and doesn’t annoy the neighbours everyone is happy and there is no reason why things shouldn’t continue.
What seems to annoy landlords the most is not just a missing month”s rent but when the tenant buries their head in the sand, doesn’t answer calls etc. In fact many landlords I talk to understand people’s financial difficulties and are more than happy to help the tenant through a difficult patch, but it is the lack of contact that causes landlords, out of frustration to go beyond what is legally acceptable and thats where the problems start.
I recently had to warn off one landlord who was definitely harassing his tenant over £5,000 of rent arrears. I asked him why he had let the arrears get that high without going for possession and he said “I always gave her the benefit of the doubt when she made excuses”. Bless Him.
I agree that anger comes when we feel we have been played for fools, by having our trust betrayed by lies. That is only human. Tenants can hardly be surprised when they have led their landlord a merry dance and then the music stops….but somehow they do seem to be surprised and reach out their hands to the law and accuse their landlord of “harassment”. You are also right that possession should be sought early. It’s better to have an empty property than one where a tenant feels s/he can live for free with no real consequences.
Yes. Although I admit possession timings through the court can seem extraordinarily long, as I have said elsewhere, if you prepare and know your stuff you can minimise that time.
And I am amazed, given how the most common problem for landlords is rent arrears, why hardly any landlords bother to take out rent protection insurance. There is a variety of products out there easily available and would solve the problem easily.
How can you minimise the wait for court dates? It’s not just the two months Notice To Quit, it’s waiting in line for a Possession hearing. Then the tenant waves their baby at the judge and tries for the maximum period. Then you have t wait for a bailiff’s diary slot – there only seems to be two bailiffs covering the whole country – and then the tenants are given plenty of warning so they can move anything valuable out leaving only their rubbish behind.
If you know a great way to push to the head of the court-date queue, Ben, then do spill the beans!
I probably give phone advice on eviction procedures to around 50 or 60 people a week and advise in person between 15 and 25 others and I would say that in 99.9% of cases the notices that are shown to me are all invalid for a variety of reasons. That includes those served by specialist companies, professional letting agents and even solicitors and this is the most common cause of delay because when advised the landlord has to re-serve again and start from scratch.
All notices have what are commonly called ‘Service Rules’, in terms of what information needs to be on them, how that information needs to be worded and what dates they need to be served on. If a landlord gets these wrong then any adviser worth their salt will be able to pick up on that.
The famous 2 month’s section 21 notice to get possession after a fixed term expires is actually 2 different ones, used at different times.
A landlord is entitled to serve a section 21 notice the day a tenant moves in, that way it expires long before they may actually need to apply for possession.
If you have been following the Suzy Butler case you will see that she didn’t serve notice until she was due back and it wasn’t a valid notice, just a daft letter pretending to be a notice. If she had served the notice when the tenant first moved in and then just used her laptop to make a claim through Possession Claims On Line” (P-COL), before she came back she could have had everything done and dusted and taken up residence again when she returned.
When applying for possession based on rent arrears on Assured and Assured Shorthold tenants the period of the notice is only 2 weeks long before an application can be made to court.
Housing Associations are under Housing Corporation guidance to serve notices very quickly, often with arrears of less than a month. Tenants feel victimised often but the fact a landlord would be irresponsible if they let their tenants accrue more debt. I have known judges grow angry with landlords who leave it too long before applying for possession and even reduce the amount of award on the basis that the landlord should have acted sooner.
Court dates are what they are unfortunately but serving the right notice for the right type of tenancy, in the correct format and with the correct wording and dates will genuinely shorten the time it takes