It can be frustrating when you want or need to bring a tenancy to an end, and the tenant refuses to move out. This can result in hours of discussion, stress and in the worst cases, having to take legal action to secure a possession order. It is an open secret that Local Authorities will always advise a tenant to stay put forcing a landlord to take these steps. How lawful this advice is, is open to debate but that is another story.
For some landlords the time and expense involved in this is too much and instead, they will take matters into their own hands. The following court case highlights why this is something you should never do.
The events took place during the pandemic although only reached court at the end of last year.
Dr Eskander, the landlord, rented her two bedroom home to a tenant but kept the second bedroom locked on the basis that she would continue to use the property and bedroom for herself as her main home.
The reality was that she would not use the property, instead renting other homes where she was working in London and then later in Plymouth.
In June 2020 the tenant was asked to pay a rent increase, however they advised that he was unable to afford an increase given financial difficulties during the lockdowns. Subsequently Dr Eskander sent him a text advising that he was to leave by the 12th August. The tenant continued to live at the property paying their rent in full and on time.
In September Dr Eskander sent the tenant a text whilst they were at work to advise that she had changed the locks and removed all of his possessions. The Local Authority were already aware of the situation as the tenant had contacted them previously concerned that they were going to be homeless. In addition an Improvement notice had been served on Dr Eskander as she had failed to repair a faulty boiler, and had not provided a gas safety certificate.
Once the Local Authority were aware the tenant had been evicted they decided to prosecute under the Protection from Eviction Act 1977.
Dr Eskander defended on the basis that the tenant was not a tenant under the Housing Act 1988 as she still retained use of the property as her main home. The Court rejected this on the basis of overwhelming evidence that she did not use the property as her principle residence. She had signed an Assured Shorthold Tenancy agreement on a property in London and in addition the tenant could show that they had been sending on mail to an address in London.
Consequently the court found that the tenant had a tenancy under the Housing Act 1988 and therefore Dr Eskander should have served a Section 21 in writing, giving a minimum of two months notice. As there was also an Improvement notice in place she would have been restricted in doing so in any case for a period of six months.
The court held that the tenant had been unlawfully evicted from the property and Dr Eskander was ordered to pay a total of just under £9,000 in fines and costs.
This case highlights the importance of ensuring that the correct route for serving notice and gaining possession is followed.
Please note the date this article was published as the law or the essence may have changed since it was posted. You should always seek independent legal advice if you are intending to rely on any of the contents. Unless stated otherwise this article only reflects the position for the Private Rented Sector in England and therefore may not apply to other countries within the United Kingdom.
All resources & news