Last month we reminded readers of the risks and sanctions for landlords taking possession of premises assumed to be abandoned without following the proper legal channels - see here.

This has proved somewhat timely, with news that Ashford Borough Council was hauled across the coals at Canterbury County Court at the end of last year in a case for unlawful eviction.

The facts

In Lutman -v- Ashford Borough Council (2017), the Council sought possession of premises let under a secure tenancy, following the tenant’s admission to hospital with dementia and her husband’s incarceration in prison for 12 months. Although the tenant and her husband were not in physical occupation of the premises during this time, the bills continued to be paid from a joint bank account.

The Council therefore arranged for the tenant, suffering with dementia, to sign a notice to quit in order for her to end her tenancy. It was accepted during the trial, however, that the tenant did not have mental capacity to make decisions about her residence and sign the notice to quit. The Council also served a notice to quit themselves to end the tenancy.

Upon expiry of the notices to quit, the Council changed the locks, on the basis that the tenant had ceased to occupy the premises and her husband was in prison.  When the tenant’s husband returned to the premises upon his release, he found he was unable to access his home. He brought proceedings against the Council for damages for unlawful eviction and for the belongings not returned to him.

The decision

The Court found that the tenant’s notice to quit was invalid. Owing to her dementia, the tenant did not have sufficient mental capacity to understand and sign the document.  The Court found that the Council was aware at the time the notice to quit was signed by the tenant that she lacked capacity.

Further, whilst the tenant lacked mental capacity to make decisions about her residence, her return to the property could not be ruled out. She had not therefore ceased to occupy the premises as her only or principle home within the meaning of section 81 of the Housing Act 1985. In addition, the property remained her husband’s principle residence notwithstanding his temporary incarceration. His occupation would preserve the tenant’s security of tenure and her tenancy, in the absence of a Court order.

The Court ordered the Council to pay the husband compensation in excess of £40,000, assessed by reference to the difference in value of the property when subject to the husband’s continued right to occupy the premises and with vacant possession, plus an additional £1,000 for the husband’s belongings not returned to him when the locks were changed.

Make sure you get it right!

The case against Ashford Borough Council shows the importance of following the proper legal processes when seeking possession of residential premises, and the serious consequences including substantial compensation available to any residential occupier, not just the tenant, where the correct processes have not been observed.

Premises cannot be assumed to be abandoned simply where the tenant or any other occupier is temporarily absent, and in most cases the landlord will be advised to obtain a possession order through the Courts before taking steps to recover possession of premises in such cases. 

Legal advice should always be taken on the correct processes to be followed in any given case to make sure you get it right, and avoid claims for substantial compensation and potential criminal sanctions for unlawful eviction.

For more information, please contact Kevin Lever at Kevin.Lever@kdllaw.com or on 01435 897297.

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