A few things of interest…
The Scottish government has put the cat amongst the pigeons by announcing that there will be a ban on evictions and a freezing of rent increases until 31 March 2023, to be implemented by fast track legislation. This would apply to both social and private housing sectors. The measure is stated to be in response to the cost of living crisis. If so, it may well be that the March 2023 end date is subject to change. I suspect there will be challenges in any event.
In England, it appears that a social rent rise cap of some 5% is being considered by the government (the rent increase being usually inflation based), but the consultation on this expressly rules out shared ownership, where rent rises are typically set out in the lease as RPI plus 0.5%. Given the RPI rate, those could be very painful rent increases indeed.
We at NL have complained about the approach of the police to illegal evictions on many occasions over the years. The approach is, as best, to say it is a civil matter and wander off, despite illegal eviction being an arrestable offence, at worst to assist in the eviction under the guise of keeping the peace. But a judgment of the European Court of Human Rights might have an impact on this.
In CASE OF JANSONS v. LATVIA, the ECtHR was asked to decide whether a police refusal to intervene where Mr Jansons had been locked out of an apartment, with security guards on the door was a breach of Article 8. The facts were
In August 2009 the applicant signed an agreement on “the use of premises” for an apartment in a residential building in Riga, which was extended on several occasions. The last signed contract stated that it would run until 1 July 2011.
However, in February 2011 the residential building was sold at a public auction.
The new owner, a company, subsequently sent the applicant a letter requesting that he vacate the apartment by 25 June 2012, and no longer accepted his payments for the use of the premises. When he failed to move out, the company cut off the electricity and water supply.
On 8 November 2012 the company placed armed security guards at the entrance to the apartment.
The applicant called the police to the apartment, but they refused to intervene, considering it a private dispute, and left. He made repeated further calls to the police to intervene, in vain, and ultimately left the apartment in the early hours of the following morning to lodge a formal complaint at the police station. While he was absent, the lock to the apartment was changed. The apartment remained guarded over the following weeks and he was refused access.
On 12 December 2012, a bailiff went to the apartment to enforce the court-ordered transfer of possession to the new owner. The bailiff forced entry, changed the locks and removed the applicant’s belongings.
The applicant, who had arrived at the apartment during the procedure, told the bailiff that he was the tenant and could prove it. The bailiff responded that this was not necessary and that he had to carry out his duties.
The applicant called the police, but they again refused to intervene.
It is, however, also worth noting that Mr J’s subsequent civil and criminal cases failed as he had no right to reside in the apartment under domestic law, as the lease had ended.
The ECtHR held that the property could be regarded as Mr J’s home, he had reside there for 3 years, and there had been an ongoing court case about his right to reside when he was forced out. Art 8 was applicable.
The failure of the police and the bailiff to take appropriate measures to ensure Mr J’s Art 8 rights was therefore a breach
In particular, the police, called to the scene, had to have been aware from the outset that the applicant had in all likelihood been living in the apartment. Yet they had neither given any order to the new owner – who had been acting on its own without any legal authorisation – to stop blocking the applicant’s access to the apartment, nor given any warning that no individual, even one unlawfully occupying premises, could be evicted without a valid court order. Indeed, it should have been evident to the police that a legal dispute could not be relied on to force a person out of his home.
Further, there was an Art 8 with Art 13 breach, as
no civil-law remedy had been available to the applicant: the civil proceedings he had brought had only addressed his right to reside in the apartment, not the unlawful eviction, considering that to be a matter for the criminal courts. A criminal-law remedy had been available, but the resulting investigation had been limited in scope and had not provided effective protection in a situation where tenancy rights had been in dispute.
Of particular interest or potential use in the UK is the finding at para 87:
With respect to the Government’s argument that the applicant could have sought restoration of his physical possession of the apartment by bringing civil proceedings, the Court considers that a mechanism whereby tenants can seek a subsequent determination of the fact that they had had the right to reside in the dwelling from which they have already been removed cannot be regarded as an adequate procedural safeguard capable of preventing unjustified interference with the right to respect for one’s home. It places a disproportionate burden on tenants who are forced to defend their rights through civil litigation after they have already lost their home. Whether the applicant would have succeeded in his argument or not, a legal dispute clearly existed between him and the new owner of the apartment (compare Connors, cited above, § 92), and domestic law required such disputes to be decided by a court prior to the eviction.
There is a dissenting judgment from the President, Judge O’Leary. This makes some strong points about the factual background and Latvian domestic law, as well as remedies that Mr J had failed to seek. And at para 34 of the dissent, she says
In relation to the negative and unlawful interference by the bailiff, the majority considers that “a mechanism whereby tenants can seek a subsequent determination of the fact that they had had the right to reside in the dwelling from which they have already been removed cannot be regarded as an adequate procedural safeguard capable of preventing unjustified interference with the right to respect for one’s home. It places a disproportionate burden on tenants who are forced to defend their rights through civil litigation after they have already lost their home” (see § 87). This reasoning, which seems firstly to presuppose a lawful tenancy, seems secondly to provide a right to remain unlawfully in the premises of another for as long as protracted legal proceedings may take, excluding damages as an effective remedy to compensate ex post facto any unlawfulness or arbitrariness in the manner of one’s removal. Were one to have approached this case from the perspective of the rights of the lawful owner under Article 1 of Protocol no 1, much of the majority’s reasoning in relation to domestic civil remedies would not hold up in my view.
There is some force in this, and I suspect there will be further judgments on this issue in the future.
However, in a situation where domestic law clearly provides for eviction of residents only by court order (Protection from Eviction Act 1977 etc. in England and Wales), there is a strong basis for seeing this judgement as meaning that is a positive obligation on police (and bailiffs) to uphold the Art 8 rights of the occupier. It is not ‘just a civil matter’.
And finally. The Housing Benefit and Universal Credit (Victims of Domestic Abuse and Victims of Modern Slavery) (Amendment) Regulations 2022 (SI 2022/942), laid on 8 September 2022, provide that victims of domestic abuse and of modern slavery are exempted from the LHA/UC shared accommodation rate.