A much commented-on forced eviction in Dublin has resulted in “an urgent lesson learned report” from An Garda Síochána, a criminal damage investigation and a request for an investigation into the treatment of the tenants in the property from the Irish Housing Minister who is “deeply concerned” by the incident. It brings into sharp focus the power imbalance experienced by tenants who have the misfortune to deal with those few landlords who are ignorant of or oblivious to the laws relating to possession and eviction.
Security of tenure and notice to quit
The two primary pieces of legislation protecting the rights of private tenants in Northern Ireland are The Rent (Northern Ireland) Order 1978 and The Private Tenancies Order (Northern Ireland) 2006.
Article 14 of the Private Tenancies Order provides that where a notice to quit is required to end a tenancy, that notice must be given in writing to the tenant a certain amount of time before the date it takes effect, meaning the date the tenant is required to vacate the premises.
Usually, the minimum notice period is 4 weeks and extends to 12 weeks, depending on the length of time the tenant has lived in the property and on the particulars of any contract governing the letting. However, as a result of The Private Tenancies (Coronavirus, Modifications) (Northern Ireland) Act 2020 landlords are now required to provide tenants with a minimum of 12 weeks’ notice if the notice to quit is issued between 5 May 2020 and 31 March 2021. The extended notice requirement is not reciprocal, and the length of notice a tenant must issue depends on the length of their tenancy and the terms of their contract.
In addition, Article 13 of the Private Tenancies Order provides that a tenant has a right to a minimum tenancy term of 6 months, unless the contract provides for a shorter or longer tenancy.
Right to due process of law
Article 56 of The Rent Order 1978 says:
56.—(1) Where any premises have been let as a dwelling-house under a tenancy and—
(a)the tenancy (in this Part referred to as “the former tenancy”) has come to an end; but
(b)the occupier continues to reside in the premises or part of them;
it shall not be lawful for the owner to enforce against the occupier, otherwise than in pursuance of proceedings in the court, his right to recover possession of the premises.
This means that if a tenant has not left the property by the date specified in the notice, the landlord must then instruct solicitors, who will issue an ejectment civil bill on the tenant.
The civil bill and court process
Prior to issuing a civil bill, the tenant should receive a letter from the landlord’s solicitor, setting out the particulars of the claim. The particulars of the claim will include a request for delivery of possession of the land subject to the tenancy and any claim for rent arrears or damages which the landlord is also pursuing. The letter will explain that legal proceedings will be issued if these particulars are not satisfied by the tenant and that legal costs will be incurred for which the tenant will be responsible.
If the claim is not settled, the solicitor will request the local court office to stamp the civil bill which will then be served on the tenant. A civil bill is valid for 21 days, and acts as notification to the tenant that the court process has been started and as a timeframe within which the tenant must serve notice of intention to defend. The document will stipulate the details of the claim and an amount to be paid within those 21 days if the tenant agrees to leave the property and pay the costs incurred to date. If matters are not settled by the expiration of the 21 days, the landlord’s solicitor will apply to the court office for a hearing date. The landlord is not required to take this action immediately after the 21-day period lapses, and may wait to do so, particularly if it seems likely that the tenant will vacate without a court hearing.
During the term of a tenancy, a landlord will only be able to recover possession of a property if a court makes an order to this effect. This will generally only happen if the tenancy agreement includes a fair and enforceable term allowing for early termination or if the court is satisfied that the tenant has breached a material term of the agreement.
A tenant who remains in occupation and continues to pay rent after the tenancy term expires becomes a periodic tenant. A periodic tenant has no defence to possession proceedings. At court, the judge must make an order requiring the tenant to vacate.
What does a proper eviction look like?
There are no bailiffs in Northern Ireland. The work that bailiffs would typically do in other areas, such as evictions and repossessions, are carried out by court officers in Northern Ireland. These people work for the Enforcement of Judgments Office (EJO). Any private firm or person who attends your home and attempts to remove you, or your possessions from the property, is acting illegally and has no lawful jurisdiction to do so.
If a tenant does not vacate after a court order is served, the landlord must apply to the EJO to have the order enforced. Where a court order has been made, it is not usually in a tenant’s best interest to remain in the property as they face mounting legal fees and difficulty finding new accommodation. However, the tenant continues to have a right to due process of the law and cannot be forcibly evicted other than through official enforcement action.
The landlord has to pay a fee to have the order enforced, but this fee will ultimately be added to the debt that the tenant owes.
Officer from EJO will make several attempts to contact the person who is going to be evicted to advise them of the process and to give them an opportunity to leave before they are evicted. The occupant will also receive several letters from the EJO relating to enforcement of the order. If the occupant has not vacated, EJO officers will eventually attend the property to remove the person and secure the property. They will identify themselves as officers of the court. The only persons authorised to remove a person from premises are officers of the Enforcement of Judgments Office. The EJO may be accompanied by the police if they expect any breach of the peace.
This process applies for all evictions of tenants. A tenant who has failed to pay rent or who has caused anti-social behaviour or who has broken the contract is still entitled to due process of law and the landlord must still follow proper legal procedures to end the tenancy.
What does an illegal eviction look like?
Any attempt to physically remove a tenant by any person, other than by an officer of the court as part of official enforcement action, is illegal. The EJO eviction will only happen at the end of a long process, and tenants will have received offical letters from the EJO and will have been visited before a physical eviction is carried out. Anyone threatened with or experiencing an illegal eviction should contact their local council’s environmental health department urgently to advise of an emergency situation.
The EJO has suspended enforced repossessions until further notice as a result of COVID-19, and will only enforce possession orders in exceptional circumstances, such as where there is persistent antisocial behaviour.
Role of the police and other statutory bodies
A person’s natural instinct when they feel as though they are being forced to leave their home illegally is to contact the police service. However, this is not the best action to take. Tenants should contact the council’s environmental health team to request advice if they are being evicted by anyone other than an officer of the EJO.
The police should only attend a property to ensure there is no breach of the peace. EJO officers can request a police presence at a lawful eviction to ensure there is no such breach. However, the attendance of police at an illegal eviction does not legitimise the landlord‘s actions and the tenant should request help from the council immediately.
The council’s team should contact the landlord and advise him or her that the steps being taken are unlawful and will lead to prosecution.
Protection from harassment and illegal eviction
Article 54 of the Rent Order 1978 provides that a person is guilty of an offence if he or she deprives a tenant of their occupation of their home or harasses the tenant. Harassment is defined as carrying out acts likely to interfere with the peace or comfort of the inhabitants, or withdrawing or withholding service in the belief that such acts will compel the tenant into giving up occupation of the property or refraining from exercising his/her legal rights or seeking remedies in respect of problems in the accommodation.
The council in which the property is located has authority to prosecute such offences.
The council can prosecute a landlord for harassment of tenants and for unlawful eviction of tenants. On conviction, a person can be liable for
either, or both, a fine not exceeding £1,000 and a prison term of up to six months for a summary offence, and
Either, or both, a fine or prison term of up to 2 years for an indictable offence.
Tenants who have been harassed or unlawfully evicted can also speak to a solicitor about issuing proceedings in the civil courts for damages. This can include compensation for any anxiety caused by the harassment and any financial loss resulting from the harassment.
A note on licensees
The protections enshrined in the 1978 Order and the 2006 Order only apply to private tenants. Not everyone who pays rent to a private company or individual to live in a property is a tenant. It is not uncommon for a person to occupy and pay rent for a property on the basis of a license to occupy the premises, rather than under a private tenancy.
However, it is the facts of the occupancy arrangement that determine whether the arrangement is a tenancy or a license to occupy. There have been numerous cases where landlords have been prosecuted for issuing legitimate tenants with sham agreements referring to them as licensees in order to restrict the tenant’s access to redress. If you are told by your landlord, or by the council, that you are not protected by legislation because you are a licensee, speak to our advisers. There is a significant body of caselaw which should be used to determine what the actual reality of your occupation arrangement is.
Where a person is legitimately occupying a property as a licensee, the landlord should still give advance notice if he or she wants the person to vacate the property. The amount of notice required will depend on the terms of any contract and on the particulars of the case. There is no minimum or maximum amount of time required, unless the contract provides this. If the contract is silent on the matter, the licensee is only entitled to “reasonable packing up time”. What is “reasonable” will depend on the facts of occupation.
If the licensee remains in occupation after notice has expired, the landlord of the property should still apply for a court order to remove the person from the property. The former occupant could take civil action against the landlord if this was not done. Both the Protection of Person and Property Act (NI) 1969 and the Protection from Harassment (NI) Order 1997 may provide licensees with some protection from harassment and eviction.
The most important thing to do if you are threatened with eviction is to seek advice.
Contact Housing Rights who can explain your rights to you and can intervene if these are not being upheld by your landlord;
Keep your council’s environmental health contact details handy, particularly of any out of hours service they may provide;
Document any attempts to forcibly remove you from your home. This evidence will be crucial to any potential investigation or prosecution;
Contact the council to request emergency help if your landlord, or any person acting on the landlord’s behalf, attempts to remove you from the property;
If the police are present, advise them that the landlord is acting unlawfully and that they should not be assisting the landlord in this illegal action. Ask for the officers’ details in case you need these for a complaint.
Landlords can get advice on their legal responsibilities from Landlord Advice NI.