Under The Protection from Eviction Act 1977, it is a serious criminal offence for anybody to take away the right of occupation, living in a property, from a ‘residential occupier’ by employing unlawful methods.
A Tenancy can only be ended by either the tenant offering a surrender of the agreement, or by the Landlord obtaining from the Courts a Possession order. This legislation is covered by S5(2) HOUSING ACT 1988.
The true definition of ‘Residential occupier’ is covered in the Protection from Eviction Act 1977. The term covers any tenants who rent their “homes” from private Landlords and almost every person living in a property that is considered as residential accommodation
Certain types of occupiers that are not classed as ‘Residential Occupiers’ are specified within the Act. Included within these groups are lodgers who are sharing the ‘residence’ with their Landlord. Under no circumstances can any eviction be achieved by physical means.
Summing up: A tenant can only be evicted by using a court order. If in the tenancy agreement a clause is included that states otherwise, then this is unlawful and will judged null and void by any court.
The correct procedure to follow when lawfully evicting a tenant is: 1) Serve the appropriate Notice. 2) Get a Possession Order. 3) Ensure that the County Court Bailiff only enforces the Possession Order.
You do have a Statutory Defence if you are able to substantiate that you had all justification to believe that the tenant had permanently left the property. As always your fate is left in the Judge and Jury’s hands at County Court. These people alone will decide if they feel that under the circumstances that you as the Landlord, acted reasonably.
What may seem unfair is when a Tenant is in rent arrears, disappears off the face of the earth and leaves some of their personal possessions in the property, as a Court generally rules that this still "demonstrating an intention to return". In other words, that the tenancy is not ended as the tenant will be coming back to resume their ‘residency’.
If you do not take the correct legal steps then you are leaving yourself wide open to being sued for damages, which can be up to £20,000!
To end a tenancy lawfully then you have to issue either a Section 21 or a Section 8 for two months’ rent arrears. Wait for the relevant Notice to expire and if there are any private belongings left in the property apply, for and obtain a Possession Order. Nine times out of ten it is pretty obvious that the Tenant has no intention of returning, but please be careful in all cases, as there are “professional tenants”. These people make a living from their knowledge of the law, by entrapping the Landlord who has not followed the correct lawful procedures in an eviction.
The two issues that will decide upon which action that will be taken against Landlord for changing the locks are:
Immigration Act revised 2016 should a landlord or letting agent fail to ensure ALL tenants/occupiers have a righto reside for the duration of the tenancy then they may be fined £3000 for each breach. The Secretary of State may instruct the landlord to remove such persons without the need of a court order by way of reasonable force
Labour market enforcement - restriction on illegal migrants to work. A labour market enforcement undertaking (an “LME undertaking”) is an undertaking by the person giving it (the “subject”) to comply with any prohibitions, restrictions and requirements set out in the undertaking
Under section 42 of the County Courts Act 1984 it is possible for the Court to transfer a matter from the County Court to the High Court for enforcement but leave (permission) of the Court is required first. The transfer time varies from court to court and can take up to 28 days, but normally takes far less. An application to seek permission can be made either at the time of making the possession claim or after possession has been ordered.