Unlawful eviction

Since December 1, 2017, the First-tier Tribunal for Scotland (Housing and Property Chamber) (“FTT”) has dealt with actions for eviction in respect of private residential leases instead of the Sheriff Court. The FTT has recently published their decision in the first successful action for unlawful eviction.

When is eviction unlawful?
When evicting a tenant, landlords must follow strict rules and regulations. If they do not it leaves them open to challenge on the basis of unlawful eviction. Landlords can face both civil and criminal proceedings. Under the Rent (Scotland) Act 1984, conviction can be taken at a summary or indictment level. If convicted on indictment, landlords can face a fine and up to two years in prison. The Housing (Scotland) Act 1988 makes unlawful eviction a civil wrong whereby landlords can be required to pay monetary damages based upon the value of the interest in the property with and without a tenant.

The tenant entered into a tenancy agreement with his landlords in 2013. He then entered into financial difficulty and accrued rent arrears, although the specific value of the rent arrears was not agreed. No steps were taken to terminate the tenancy agreement due to the arrears. The Landlord argued that there had been informal discussions surrounding a date for removal from the property without Court proceedings, however this had not been recorded.

The tenant returned to the property to find his belongings placed in boxes in the communal flat close, with the landlord’s representative having changed the locks.

Potential Defence
Landlords have a potential defence against the claim of unlawful eviction whereby they had reasonable cause to believe that the tenant ceased to reside in the property or there were reasonable grounds for withholding services. The landlord and his agents tried to claim that the property looked abandoned and thus there was reasonable cause to believe the tenant no longer stayed there. The landlord also suggested that a previous note posted through the door received no response from the tenant.

This defence was unsuccessful as the tenant had advised that he still stayed in the property. Additionally, the landlord had filled seven boxes with belongings of the tenant from the property. If the tenant had left the property, it would have been unlikely that they would have left so many possessions in the property. During the giving of evidence, it was also heard that the landlords considered that there was a previous agreement to leave, rather than their believing that the tenant had actually left.

The tenant was successful in arguing that there had been unlawful eviction. There was a dispute on quantum, however, due to the fact that the survey supporting the lesser value was lodged one day before the hearing, the tenant’s agents opposed this. The FTT awarded the higher level of damages of £18,000 to the tenant.

Eviction of Tenants
Whether evicting tenants under an old Assured Tenancy, Short Assured Tenancy or the new Private Residential Tenancy, care must be taken to ensure that the correct process is followed. Failure to do so can result in significant penalties. The decision provides a number of warnings to landlords including not to rely upon oral ‘removal agreements’, to take care if you intend to rely upon any defence and to adhere to the timescales set down by the Tribunals.

For information and help on any of the matters raised in this article please speak to a member of the Blackadders Dispute Resolution Team.

Susan Currie

Susan Currie