Alternatives to court action for harassment and illegal eviction

People experiencing harassment, illegal eviction and/or antisocial behaviour may be reluctant to take action against the perpetrator for a number of reasons. Stress and anxiety caused by incidents of harassment or violence may be factors affecting what the client hopes to achieve. Clients may also be fearful of retaliation by the perpetrator.

Advisers should explain the practical steps the client may be able to take if they want to take action, the legal remedies available, and the alternative accommodation options the client may have if they choose to leave. A booklet about protection against harassment and illegal eviction from the Ministry of Housing, Communities & Local Government sets out what people can do if they are being harassed or are threatened with illegal eviction.

Checking the occupier's housing status is often the first step in helping the client to decide what action may be appropriate. This is particularly important in cases of harassment under the Protection from Eviction Act 1977 and/or illegal eviction, as an occupier's security of tenure dictate show a tenancy can be brought to an end legally.

Excluded occupiers

If an occupier is an excluded occupier[1] (for example if they share accommodation with the landlord), the landlord can end the tenancy simply by giving 'reasonable notice'.

Excluded occupiers are outside of the protection of the Protection from Eviction Act 1977 once reasonable notice has expired or their contract has come to an end, and the landlord is permitted to evict the occupier peacefully, without a court order.[2] This might include changing the locks while the occupier is out.

It may still be possible for an excluded occupier to take action against violence or persistent harassment using other legislation; for example the Protection from Harassment Act 1997, the Criminal Law Act 1977 and/or the Criminal Damage Act 1971.

Clients may prefer to seek alternative accommodation rather than to take legal action against the perpetrators. This may be because of fear of retaliation; conditions that make it unreasonable to remain in the property; or simply because the client wants to move.

It may be possible to move to other accommodation and still take action against the perpetrator, depending on the legal remedy being sought.

Moving into alternative accommodation

Clients may prefer to move into alternative accommodation if the situation becomes intolerable. This may be an appropriate solution for some tenants (eg those with little security of tenure). Advisers should explain that the client may lose (or gain) some rights, depending on the type of tenancy they have and the type of tenancy they are likely to have in the accommodation they move into.

Tenants of local authorities or housing associations may have the option to seek a transfer or exchange their home with other local authority/housing association tenants.

Making a homelessness application

If the client becomes homeless, s/he may be able to make a homelessness application.

An applicant is regarded as statutorily homeless if it is not reasonable to remain in their accommodation because they, or someone they usually lives with or who might reasonably be expected to live with them is being subjected to domestic or other violence or threats of violence that are likely to be carried out.[3]

The Homelessness Code of Guidance also states that accommodation may not be reasonable to continue to occupy if the applicant is suffering severe harassment.[4]

While authorities may advise an applicant to pursue a legal remedy (eg an injunction), this should not be done purely as a matter of policy and must take account of the applicant's safety in each individual case.[5] The council cannot make judgements about a person's decision to take action under criminal or civil law when deciding whether s/he is homeless.[6]

Authorities should also accept an applicant as homeless if they have accommodation but cannot secure entry (eg because of an illegal eviction by the landlord).[7] The local authority cannot refuse to assist someone who is homeless in this situation even though legal remedies may be available to the applicant to regain possession of the accommodation.[8]

Clients experiencing violence may be able to bring proceedings against the perpetrator under criminal or civil law. This might result in an injunction, a claim for damages and/or a claim under the Criminal Injuries Compensation Authority.

Female clients experiencing domestic violence can also contact Women's Aid to find emergency accommodation in a refuge.

There are certain things that occupiers can do which may make it easier to tackle harassment or illegal eviction. These include:

• reporting the events to the local authority's tenancy relations officer (TRO) or an advice centre

• keeping a diary, notes and photographs detailing all events that take place. Evidence will be important if it is necessary to go to court

• reporting any harassment, violence, or threats to the police in case police evidence is needed later

• asking the landlord to put all communications in writing and keeping copies

• having somebody else with them to give support and act as a witness whenever they have dealings with their landlord or landlord's agent

• getting together with other occupiers by joining or setting up an association

Occupiers could also consider writing to the landlord saying that if the harassment continues, they may be forced to take legal action to:

• prevent further harassment, and/or

• get reinstated at the property, and/or

• claim damages for occupation at another address

Occupiers could do this themselves or could report events to an advice centre, solicitor or tenancy relations officer and ask them to contact the landlord on their behalf. Copies of all correspondence to or from the landlord should be kept.

In some situations it may be possible for an illegally evicted occupier to regain possession by forcing a re-entry (eg by breaking a window and changing locks) if they feel it is safe to do so. However, if there is someone inside the property who opposes the entry, they may be committing an offence under the Criminal Law Act 1977 unless they can show that they are a displaced residential occupier.

If an evicted occupier decides to try to regain occupation in this way, it may be advisable for them to have a tenancy relations officer and/or the police in attendance, so as to provide assistance in case of a confrontation with the landlord. However, if an occupier uses this remedy s/he must be aware of the risk of committing the offence of criminal damage.[9]

If an occupier is threatened with homelessness, is in priority need and did not become threatened with homelessness intentionally, the local authority has a duty to take reasonable steps to ensure that accommodation does not cease to be available.[10] This could include a tenancy relations officer (or other officer) negotiating with a landlord to reinstate or refrain from harassing a tenant.

To help occupiers whose supply of gas, water and/or electricity has been disconnected or who have been threatened with disconnection, local authority environmental health departments can arrange for the supply to be reconnected or intervene to prevent disconnection. The local authority can do this even if no harassment or illegal eviction has taken place, where money for bills is clearly included in the rent and the landlord has failed to pay them.[11]

Many local authorities employ tenancy relations officers (TROs) to deal with cases of harassment and illegal eviction and to prosecute landlords where necessary. There is no legal requirement for local authorities to have a TRO service; sometimes staff from the environmental health department, legal department or the housing department take the role of tenancy relations officers.

A TRO may be able to stop the harassment or persuade the landlord to reinstate an occupier at an early stage by explaining the law to the landlord either by telephone, letter, or visit. TROs may also 'caution' the landlord, under the Police and Criminal Evidence Act 1984, that they may be committing an offence and may be prosecuted. Some local authorities operate an out-of-hours TRO service.

The TRO may try to settle the dispute between the landlord and the occupier without any prosecution. Where it is clear that an offence has been committed and the occupier wants a prosecution, the TRO can prosecute on behalf of the local authority.

The Association of Tenancy Relations Officers (ATRO) provides useful Guidance for TROs.