I am a property guardian, can the guardian company evict me without a court order?
The short answer is no. The supposed ease of evicting a property guardian no doubt attracts landowners involved in these arrangements, but if the guardian company does not follow the correct procedures when evicting a property guardian, the guardian may have a claim for harassment and/or unlawful eviction.
Licence to occupy
The lack of clarity around (and often brazen disregard for) property guardian’s rights stems from the fact that guardians usually occupy spaces under a licence rather than a tenancy agreement (this is not to say all do and you should seek legal advice if you think you might have a tenancy). While a licensee does have fewer rights than a tenant, this does not mean that they are without any protection, especially in relation to eviction. As a “residential occupier” of a building, unless the licensee is an excluded occupier – for example, if you share your accommodation with your landlord – re-possession of the property must be in accordance with the Protection from Eviction Act 1977.
Protection from Eviction Act provisions
Correct notice period
Guardians often receive notice giving them a short period of time to leave the property. Many are told they must leave within two weeks, others report being given as little as twenty four hours. Such scenarios are familiar, and the property guardian, unaware of their rights, often packs their belongings and leaves by the deadline imposed by the guardian company. They don’t have to. The guardian company must give the guardian at least four weeks’ written notice to leave. The notice must also contain information prescribed by law. Failure to comply with these requirements means the notice is not valid.
Court order and warrant
Even if the guardian company has served a valid four week notice, this isn’t the end of the story. Many property guardians are told that if they don’t leave the property following expiry of the notice, they will be trespassing. This is not correct. If you don’t leave by the end of the notice period, and the guardian company still want you out, they must successfully apply to court for a possession order, and once this has been made, obtain a warrant for eviction by court bailiffs. They can’t simply change the locks, physically throw you out or threaten and harass you to leave.
If your guardian company, or someone acting on their behalf, is threatening you or using violence to try to evict you, you should call the police.
If the guardian company fails to follow the procedure outlined above, they will have breached the Protection from Eviction Act. Breach of this Act creates both criminal and civil offences.
The local authority are able to prosecute guardian companies for criminal offences but for various reasons, often don’t. It is still worth complaining to the local authority as they might be able to assist in negotiating re-entry to the property. If the local authority can’t help, the best way forward may be to instruct a solicitor to make a civil claim. Under such a claim, if you have been unlawfully evicted or harassed into leaving your home, you may be entitled to compensation, and if the premises have not already been re-let, obtain an injunction to get back in the property.
If, once you have been evicted, your possessions remain in the property, the guardian company is responsible for them and must take reasonable steps to protect them, and to allow you to come and collect them. If they fail to do so, you may also be entitled to compensation for loss and damage to your possessions.
It is a defence to a claim for unlawful eviction if the guardian company can prove that they believed, or had reasonable cause to believe, that the guardian was no longer residing at the property. It is also important to note that if the guardian leaves voluntarily, even if the notice was not valid, they are unlikely to have a claim for unlawful eviction. However, depending on the circumstances, they might still have a claim for harassment.
Obviously any successful claim for re-entry to the property provides only short term respite. The guardian company does have a right to possession of the property provided they do it the right way.
Anthony Gold have successfully acted for property guardians who have been illegally evicted. If you are having problems with your guardian company, call us on 0207 940 4000 or email us by clicking here and we can see if we can help. Legal aid is still available for claims for unlawful eviction and harassment. Alternatively, if you do not qualify for legal aid, other funding arrangements, such as no-win no-fee, can be agreed.