Landlord entering your property whilst you are in bed

ValHaller

benson1980 wrote: »

Its not harassment (no course of conduct). What the landlord has done in terms of entering isn't something that the police would deal with retrospectively

Some confusion of terminology here, methinks.

There is a general offence of Harassment, nothing to do with Tenancy law, which requires a course of conduct ie more than 1 instance of the behaviour. It is basically intended to deal with unpleasant behaviour which might not in itself be illegal as a kind of catch all for low level annoyance.

Harassment of a Tenant by a Landlord or people acting on his behalf is a different matter as I understand it and 1 instance of the behaviour may constitute an offence.

You are right that the police probably won't act. This would be plod laziness rather than correct application of the law - plus they too may be confused about general harassment and harassment of tenants

Guest101

ValHaller wrote: »

Some confusion of terminology here, methinks.

There is a general offence of Harassment, nothing to do with Tenancy law, which requires a course of conduct ie more than 1 instance of the behaviour. It is basically intended to deal with unpleasant behaviour which might not in itself be illegal as a kind of catch all for low level annoyance.

Harassment of a Tenant by a Landlord or people acting on his behalf is a different matter as I understand it and 1 instance of the behaviour may constitute an offence.

You are right that the police probably won't act. This would be plod laziness rather than correct application of the law - plus they too may be confused about general harassment and harassment of tenants

I do agree with what you've put to a point, but i still think the offence is Aggravated Trespass, and that's a 3 month sentence potentially. I really would be contacting the police, lazy or not, report it and chase it, they have to act. Failing to act could breach their duty of care to the victim.

G_M

YORKIE1:
S.68 CJPOA 1994 only applies to trespass on land in the open air. It does not apply in the situation described by OP.

'openair' was deleted by: Words in s. 68(1) repealed (E.W.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 59(2), 92, 93, Sch. 3; S.I. 2003/3300, art. 2(g)(ii)(d)

Guest101 wrote: »

I apologise, in my haste I meant to say Aggravated Trespass, s.68 of the Criminal Justice and Public Order Act 1994

Paragraph 1, subsection B.

The lawful activity being the peaceful occupation of a lawfully possessed proerty through a tenancy agreement

I know of no case where this has been tested in the courts within the context of a tenancy (does not mean it has not happened though!)

Whether the courts (or police) would prosecute/convict a LL in circumstanceslikethis is, I believe, dubious.

The Act was not created for these circumstances - it was not Parliaments intent.

Additionally, it is dubious whether there is an actual 'trespass' in the 1st instance(before even considering 'agravated'.

A LL does have rights of access under common law, just as a tenant has rights to 'quiet enjoyment'. Where these (civil) rights clash (as they do), only a (civil) court can decide which takes precedence in any given case.

Of course, if a tenant had been to (civil) court to enforce his right to 'quiet enjoyment', and then a LL entered, clearly this would be trespass (and may or may not be 'agravated' as well) (it may also be Contempt of Court...).

Arguably too, if a LL entered (using his common law right of access) and a tenant instructed him to leave (thus challanging his right of access on thebasisof 'quiet enjoyment' and then the LL refused to leave, at that point trespass would arise.

Perhaps.

But please note I am not a lawyer, far less a property lawyer.

However, I suspect pursuading the police to take action in a case like this on the basis of the 1994 Act would be like pursuading politicians to stop claiming expences!

Guest101

G_M wrote: »

'openair' was deleted by: Words in s. 68(1) repealed (E.W.) (20.1.2004) by Anti-social Behaviour Act 2003 (c. 38), ss. 59(2), 92, 93, Sch. 3; S.I. 2003/3300, art. 2(g)(ii)(d)


I know of no case where this has been tested in the courts within the context of a tenancy (does not mean it has not happened though!)

Whether the courts (or police) would prosecute/convict a LL in circumstanceslikethis is, I believe, dubious.

The Act was not created for these circumstances - it was not Parliaments intent.

Additionally, it is dubious whether there is an actual 'trespass' in the 1st instance(before even considering 'agravated'.

A LL does have rights of access under common law, just as a tenant has rights to 'quiet enjoyment'. Where these (civil) rights clash (as they do), only a (civil) court can decide which takes precedence in any given case.

Of course, if a tenant had been to (civil) court to enforce his right to 'quiet enjoyment', and then a LL entered, clearly this would be trespass (and may or may not be 'agravated' as well) (it may also be Contempt of Court...).

Arguably too, if a LL entered (using his common law right of access) and a tenant instructed him to leave (thus challanging his right of access on thebasisof 'quiet enjoyment' and then the LL refused to leave, at that point trespass would arise.

Perhaps.

But please note I am not a lawyer, far less a property lawyer.

However, I suspect pursuading the police to take action in a case like this on the basis of the 1994 Act would be like pursuading politicians to stop claiming expences!

Fair point, it's an intersting topic, and like you said i couldnt find any case law. I agree it's not the intended use of the law, but there does seem to be an implication (given that open air was removed) that this could be used in private premises.

Certainly until the landlord has trespassed, he cannot has commited aggravated trespass, but I wanted to explain my position.

I do agree that the police may not take this matter seriously, but reporting it to them, may mean they investigate, ie speak to the landlord and explain that he cannot simply let himself in.

CC-Warrior

PasturesNew wrote: »

That's b0ll0x. Tenants do have that right.

In the three tenancy agreements I've signed, it clearly states this is not allowed.

G_M

Guest101 wrote: »

Fair point, it's an intersting topic, and like you said i couldnt find any case law. I agree it's not the intended use of the law, but there does seem to be an implication (given that open air was removed) that this could be used in private premises.

I believe this was to extend it to cover indoor raves!

Now if the LL and his mate came in and started setting up a sound system......

Guest101

fair point, i guess until it's tested we wont know for sure

Yorkie1

Guest101 wrote: »

My Understanding is that the necesity for it to be open air was removed.

2003 Anti Social behavior Act ss.59(2) - http://www.legislation.gov.uk/ukpga/2003/38/section/59/prospective#section-59-2

I do apologise. You are correct in this regard - didn't read the footnotes.

That being said, I am still not convinced this type of behaviour is that which the offence is designed to address. The additional specific intent is required, in addition to trespass.

http://www.cps.gov.uk/legal/s_to_u/trespass_and_nuisance_on_land/

Guest101

Yorkie1 wrote: »

I do apologise. You are correct in this regard - didn't read the footnotes.

That being said, I am still not convinced this type of behaviour is that which the offence is designed to address. The additional specific intent is required, in addition to trespass.

http://www.cps.gov.uk/legal/s_to_u/trespass_and_nuisance_on_land/

Thanks for the link, iteresting read. I do agree that the intent of the act wasn't for this matter.

It's interesting as under 'Charging: Aggravated tresspass' last paragrapth:
This additional conduct can be anything. There is no requirement that the additional conduct should itself be a crime, so activities such as playing a musical instrument or taking a photograph could fall within anything. What limits the scope of anything is the intention that must accompany it: the intention to obstruct, disrupt or deter by intimidating. Ramblers for instance, may trespass, and may disrupt a lawful activity (for example, rounding up sheep) by doing so, but unless they have the relevant intention, they do not commit the offence. Proof of this specific intent is necessary for conviction. It is no defence that the intent was not fulfilled (Stones: 8-24907).

Says the activity does not have to be a crime, simply a disruption to the lawful activity. In my mind (using the reasonable person test subjectively ) - Arriving when the tenant was going to bed was a disruption, and by not providing 24 hrs notice, I think he could be deemed to have trespassed.

I would suppose, that should the OP sue successfully under the civil legislation, the criminal case would be stronger.

Having said all that, i do concur that the intent of the act is to combat protesters and ravers, andother public order matters. Whether that in itself would prevent a prosecution, i do not know, but would love to find some case law for either verdict.

G_M

Yorkie1 wrote: »

I do apologise. You are correct in this regard - didn't read the footnotes.

That being said, I am still not convinced this type of behaviour is that which the offence is designed to address. The additional specific intent is required, in addition to trespass.

http://www.cps.gov.uk/legal/s_to_u/trespass_and_nuisance_on_land/

Thanks Yorkie. Makes it clear this was intended for hunt sabateurs, raves, squatters

Using this leglislation to charge a residential landlord for trespass in a property he owns would really be extending its use way beyond the original intention.

But pigs have been known to fly!