Eviction and repossession

Residential occupiers enjoy significant statutory protection from eviction or harassment. Harassment and illegal eviction are criminal offences, and a person who is harassed or illegally evicted can also claim damages through the civil court.

Protection from Eviction Act 1977 makes it an offence to:

• do acts likely to interfere with the peace or comfort of a tenant or anyone living with him/her, or

• persistently withdraw or withhold services for which the tenant has a reasonable need to live in the premises as a home

It is an offence to do any of these things intending, knowing, or having reasonable cause to believe, that they would cause the tenant to leave their home, or stop using part of it, or stop doing the things a tenant should normally expect to be able to do.

It is also an offence to take someone's home away from him or her unlawfully.

A person who is convicted by magistrates of an offence under Protection from Eviction Act 1977 may have to pay a maximum fine of £5,000, or be sent to prison for six months, or both. If the case goes to the Crown Court, the punishment can be imprisonment for up to two years, or a fine, or both.

Criminal Law Act 1977, s 6 prohibits violent re-entry. An offence under this section is committed only if the tenant or some other person is present at the time of re-entry.

Tenants

A landlord's right to get property back from a residential tenant can normally only be enforced through the courts.

A landlord seeking possession from:

• an assured or assured shorthold tenant must first serve notice on the tenant. Depending on the grounds on which the landlord is seeking possession, the period of notice will be either two weeks or two months, and for

• a landlord seeking possession from most other kinds of residential tenants or licensees must serve a notice to quit giving at least four weeks' notice

In either case, the tenant is not required to leave the property until the notice expires, and even then may not be evicted without an order of the court.

Licensees

Housing Act 1988 requires a licensor to obtain a court order before evicting a licensee. Licences granted on or after 15 January 1989 are exempt from this requirement only if granted:

• by resident landlords to people with whom they or a member of the landlord's family share accommodation, provided it is in their only or principal home

• to trespassers (when granted as a temporary expedient)

• to those occupying a property for a holiday, or occupying it rent-free

• to people living in certain publicly funded hostels

Mixed use premises

Protection from Eviction Act 1977, s 2 provides that a right of re-entry or forfeiture may only be enforced by court proceedings where premises are ‘let as a dwelling'. The Court of Appeal recently held that the phrase ‘let as a dwelling' means ‘let wholly or partly as a dwelling'. Statutory protection therefore applies to premises let for mixed residential and business purposes. Where mixed use premises are let under a single lease, a court order is required before the landlord can forfeit that lease.

Where the business and residential parts of the premises can be let separately, the landlord may choose to avoid this problem by granting the tenant separate leases for the business and residential elements. If the premises cannot be severed, the landlord may consider letting them as business premises only and prohibiting residential use. However, this will reduce the market rent and is likely to make the premises less marketable.

Human rights

The ruling of the European Court of Human Rights (ECtHR) in McCann v United Kingdom [2008] All ER (D) 146 (May) may require a rethink of certain types of possession proceedings in the public sector.

European Convention of Human Rights, Art 8(1) confers a right to respect for a person's home with which a public authority cannot interfere. Article 8(2) provides that an interference can be justified by showing that it is 'in accordance with the law and necessary in a democratic society in the interests of the economic well-being of the country, for the prevention of disorder or crime or for the protection of the rights and freedoms of others'.

Whether premises are a person's home is a question of fact rather than law. It is irrelevant that a defendant's tenancy has been lawfully terminated and that he or she is a trespasser. Where a person actually lives will be treated as his or her home.

The House of Lords has accepted (Kay v Lambeth London Borough Council [2006] 2 AC 465) that possession proceedings necessarily amount to interference under Article 8(1). Article 8(2) automatically comes into play.

If possession is obtained by proving a statutory ground the court order is reasonable and satisfies the requirements of Article 8(2). The problem arises where, as a matter of law, the landlord has an unqualified right to possession (say, because the defendant's right to occupy has been terminated or where he or she was always a trespasser).

McCann involved a procedure widely adopted by local authority landlords in cases of domestic violence. The applicant and his wife had been joint tenants of a council house. In 2001, Mrs McCann moved out and asked to be rehoused because of domestic violence. The landlord required her to serve a notice to end the existing tenancy without the need to resort to the grounds of possession in Housing Act 1985, s 84. This meant that possession could be sought summarily.

Mr McCann applied to the ECtHR, which held that the interference with the applicant's right to respect for his home was 'lawful'. However, the next question was whether the interference was 'necessary' in a democratic society and this turned on whether it was proportionate. The court concluded that: 'the loss of one's home is a most extreme form of interference. Any person at risk should in principle be able to have the proportionality of the measure determined by an independent tribunal notwithstanding that under domestic law his right of occupation has come to an end'.

The landlord in McCann could have recovered possession under Housing Act 1985. It would then have had to prove the domestic violence and the court would have considered whether an order was reasonable. It bypassed this scheme by requiring Mrs McCann to serve a notice to quit. Neither the landlord nor the court had considered the applicant's Article 8 rights. The ECtHR concluded that the applicant's rights under Article 8(1) had been infringed by the absence of an opportunity to test whether an order for possession would be proportionate. The violation was purely procedural and even if Mr McCann's case had been properly considered, the order for possession might still have been made. It awarded only €2,000 in compensation. The case raises important doubts over the efficacy, for public sector landlords, of the current approach in summary possession proceedings. It requires a rethink - a view now supported by decision of the House of Lords in Doherty v Birmingham City Council [2008] All ER (D) 425 (Jul).