We want an injunction please!

Many years ago when I was a trainee, my principal and I saw some new clients, a middle aged man and his wife. His new wife as it turned out.

“We want to get an injunction against my daughter” he began, his wife nodding in the background, all blonde curls and pursed lips. “We have asked her to leave but she won’t go”.

When we enquired deeper into this unusual request, it turned out that the daughter was bringing unsavoury friends home and leaving the kitchen in a mess. “We’ve told her we are not going to put up with it any longer, and now we want an injunction to get her out”.

We explained to them gently, that an injunction was a serious legal remedy generally used, in a family context, against violent partners to protect their family from physical attack. It was most unlikely, we continued, that a Judge would award an injunction in these circumstances.

This did not go down well. “Oh well” he said, standing up and reaching for his coat, “if we can’t get an injunction, then there’s no point in staying”. We were left feeling very sorry for the daughter.

People often talk glibly about injunctions, but to a lawyer they are a serious business. They will only generally be used if someone is in physical danger, such as the violent partner situation, or if the claimant’s property rights are threatened in some way (or example you may be able to get an injunction to prevent someone building something on your land).

In a lodger situation they are almost unheard of. The only circumstances where I think an injunction would be suitable would be if a lodger had turned violent and the landlord and his family were in danger of physical attack (and the Judge would normally want to hear about an attack that had already taken place and be persuaded that a future attack was probable). An injunction may also be appropriate perhaps if a lodger became vindictive after being evicted, and resorted to stalking his former landlords and invading their privacy in an intrusive manner.

But bear also in mind the limitation of legal remedies. If someone is absolutely determined to break your knees, particularly if they are slightly unbalanced, a piece of paper with a court seal on it, may not in reality be much protection. They may of course go to prison after they have broken your knees, but what good is that? The damage is done.

It is far, far better to avoid conflict situations (so far as you are able), in the first place.

Have you every used a legal remedy against a lodger? Was it successful?

Lodger eviction

In Day 20 of my 21 days of tips for lodger landlords, I described a procedure for evicting lodgers without getting a court order. When exactly can this be used?

The answer to this lies in the Protection from Eviction Act 1977.  This is the act which says that all evictions of residential occupiers must be done through the courts, and that if a residential occupier is evicted without a court order, then this is a criminal  offence. (Note that in this post I will use the word ‘occupier’ a this covers both lodgers and tenants).

However the act recognises that not always be appropriate to force someone to get a court order for possession, and sets out a number of exceptions to the general rule.

These are set out in section 3 of the Act, and they are known as ‘excluded tenancies and licenses’.  They include:

• where the occupier (whether or not he or she is a tenant) shares living accommodation with the landlord, and
• where the landlord was living at the property as his main (or ‘principal’) home and sharing living accommodation with the occupier from immediately before the occupier started living there to the time when the occupation ends, and
• the shared accommodation is not just storage areas, halls, corridors or staircases, as these don’t count. It must be proper living accommodation such as a sitting room, kitchen, and/or bathroom (and preferably more than just one room).

Excluded tenancies and licenses also include those granted for a holiday, so the procedure given on Day 20 will apply also if you provide B&B accommodation to holiday makers.

Note that if you have let accommodation in your home which is entirely self contained (and which is not holiday accommodation let to someone on a genuine holiday), then you *will* need a court order.  For more information on this, see my Landlord Law web-site.

Are you worried about your lodger?  Do you need some advice?

Although our 21 days of tips series will answer most people’s questions, there are always those tricky situations where you need some professional help  If you have a difficult problem and need to know what your legal rights are, you may want to consider using my new advice service.

This is how it works :

• First – read the terms and conditions
• Second – set out your problem in the online instruction form (which you will find linked from the advice page)
• Third – pay the fee (you can either pay by paypal or send a cheque) – you will be re-directed to the payment page once you have submitted the instruction form
• Fourth – send any documents I will need to see (eg lodger agreement, letters etc)
• Fifth – receive your advice by email

The fixed fee for this is £75.  This may sound a lot if you are on a low income, but it is less than my fee on my Landlord Law site, so it will be limited *just* to lodger related problems.  Otherwise it is unfair on my Landlord Law members.

Hopefully your lodger will be wonderful and you will never need the advice service.  However if you do, it is here for you.

Although hopefully this will never happen to you, very occasionally lodger landlords will need to evict their lodger. Todays tips give guidance on this.

Caution – todays tip only applies to lodger landlords who share living accommodation with their lodgers.
The guidance given here regarding eviction, will *only* be applicable to landlords with lodgers living in their own home where at least some living space (e.g. kitchen, bathroom, sitting room – and preferably more than one room) are shared with the lodger (this is explained on day 1).

If your lodger only uses his own room, and in practice does not use any of the rooms used by you, the advice here will not apply to you and you should take legal advice.

Note  also that the property must have been your main residence for the whole of the time the lodger has been living there.

If you use the procedure set out here in circumstances where you are not entitled to, you will be committing the criminal offence of unlawful eviction.  You may also be at risk of being sued for financial compensation, and/or an injunction ordering you to let him back in again.

Notice to quit
Before following the information given in this tip, you must have given your lodger formal notice to leave. This was discussed on Day 19.  The effect of this will be to end your lodgers legal right to live in the property.

If your lodger refuses to go
In most cases, your lodger will leave as asked on or before the day given in the notice you have given him. However in a few cases (and this happens only *very* rarely) your lodger may refuse to move out. If this happens, consider first the following options:

• If your lodger is a student, complaining to his university or college may help. Or have a word with the accommodation office.
• If your lodger came to you via the HR Department of a local employer talk to them about it.
• Have a look at the lodgers application form (see Day 11). If there are any next of kin, consider contacting them to see if they can help.

However if none of this helps, you may have no option but to proceed to eviction.

Eviction
If you have a lodger who refuses to go, you can follow the procedure below. Note that save in cases of exceptional bad behaviour (preferably where you have reported matters to the police), you should not use this procedure unless you have given your lodger at least 28 days formal notice to leave. In all cases, at least one letter giving notice to vacate *must* have been given to the lodger, and the notice period must have expired.

Where you are evicting your lodger for violent or criminal behaviour, you should make sure you will be able to prove this if it is ever challenged by your lodger.  This is why getting the police involved when there are incidents, as suggested on Day 19, is a recommended.  Keeping a diary of events is another good idea.

1. On or shortly before the day the lodger is supposed to move out, ask him when he will be leaving. If he asks for just a day or two longer, you should normally agree to this, particularly if there is a genuine reason for his request (e.g. if he cannot move into his new accommodation immediately).  Otherwise, proceed as follows.

2. Arrange for the locks on your property to be changed at a time when your lodger is likely to be out for some time. (It is probably best not to warn your lodger of this beforehand in case he decides to stay in the property to prevent you doing it).

3. When you lodger returns, refuse to let him in. If you think that he is likely to cause trouble, arrange for the police to be present (it may be a good idea to arrange for this anyway). The police should attend if you tell them that you expect there to be a breach of the peace. If the police will not attend, make sure that you have someone else with you, to act as an independent witness.

If the police are not there and your lodger starts causing trouble, do not open the door (or shut the door before he gets in). Ring the police and ask them to come out immediately. Do not let the lodger back into the property.

It is very important that you use no force or violence whatsoever when evicting your lodger. If you do, this will put you in breach of the law yourself, and you will be vulnerable to being arrested and prosecuted by the police. This is why a passive eviction process of refusing to allow him back in is recommended. If your lodger attacks you, you can defend yourself, but you should be careful to avoid any situation where this can happen (e.g. don’t open the door). This is why having a Police presence is so important, as if your lodger becomes violent, they can deal with it for you.

4. Your lodger will be entitled to have his possessions returned to him. However, in most cases he should only be allowed back into your property (e.g. to pack) if there is police presence.

5. Under no circumstances should you or anyone in your house let the lodger in again after this. If he continues to cause problems, consider going to a solicitor and asking for an injunction. However it is most unlikely that this will be necessary. In most cases the lodger will accept the situation, particularly if the police have been involved.

General notes on eviction
The procedure outlined above should only *ever* be used as a last resort, against a lodger who has behaved badly towards you, and who has either been given several warnings and written requests to vacate but has totally ignored them, or who has behaved so appallingly that it is unreasonable for anyone to expect you to allow him to stay in your home any longer.

If you are worried about forcible eviction, it is a good idea to take legal advice first, but make sure it is from someone who knows and understands housing and letting law (preferably a solicitor). Give them a copy of this blog post and ask them if, in their opinion, the advice given here (and the section of the Protection of Eviction Act 1977 referred to below) applies to you.

If you decide to proceed without taking legal advice first, and are challenged about your right to evict a lodger in this way without a court order (either by the lodger himself or by any legal advisor on his behalf), tell them that your legal authority is contained in section 3A(2) of the Protection from Eviction Act 1977.

In the first part of this act, it states that no residential occupier shall be evicted other than by ‘due process of law’ i.e. by obtaining a Court order for possession. Section 3 of the Act then goes on to list various types of occupation where this rule does not apply – they are described in the act as ‘excluded tenancies and licenses’.  Sub sections (2) and (3) are the sections which provide for lodgers to be excluded.

You can read Protection from Eviction Act 1977 via this link.

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What is your experience of the things in this section? Have you ever had to evict a lodger forcibly? Were the police supportive? Do you have any tips for other lodger landlords?