Let me put a hypothetical question. It’s the same question I put to participants on my training courses.
Imagine you are a landlord and your tenant owes you £5,000 in back rent.
They are apologetic for a while and then things deteriorate to a point where they don’t answer the phone or respond to emails.
You start texting and leaving messages repeatedly. You go to the property in the evening to speak personally and you send messages by Whatsapp. You are never threatening, you never swear or raise your voice.
Are you harassing the tenant?
I’ve never met a landlord who would think they were but let me introduce you to section 40 of the Administration of Justices Act 1970. A piece of legislation I have called upon countless times.
“Punishment for unlawful harassment of debtors.
(1) A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he—
(a) harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;
(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;
(c) falsely represents himself to be authorised in some official capacity to claim or enforce payment; or
(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not”
I’ll pick out a couple of choice passages in there for explanation.
“Harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, are calculated to subject him or members of his family or household to alarm, distress or humiliation”.
Is the way the landlord or agent are going about trying to recover the money causing alarm, distress or humiliation?
Such questions need answering if a criminal offence is to be averted.
The bottom line is, if a tenant owes money, the correct method for addressing that is through possession proceedings, not persistent calls and messages, however reasonable a landlord or agent may think they are being.
You also need to take into account that word “Calculated”. It isn’t the messages or phone calls alone, “Calculated” suggests that the calls and messages can be reasonably assumed to be part of a plan or strategy to coerce the money out of the tenant and that is a very thin, grey line that is easy to cross.
A landlord or agent may argue that their actions arent calculated to cause alarm or distress but merely to elicit payment but a reasonable counter-argument would be that the 2 are indistinguishable. Eliciting payment resulting from pressure brought to bear by the actions, which itself requires causing an amount of distress.
Read any account of court cases. Such back and forth arguments are the very essence of litigation.
Then look at, ”Any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;
Back in 2008 Merseyside letting agents Suttons began a campaign to publicly identify tenants in rent arrears by placing estate agent style boards in their front gardens, containing the words “Rent dodger lives here”.
Humiliating publicity? You bet and Liverpool City Council had a word in their ears. The boards were swiftly removed.
As TRO for the London Borough of Lewisham I once successfully prosecuted a baker in Deptford who put a poster in his shop publicising his tenant’s rent arrears. He refused to remove it so we took legal action and I also had a slightly off-piste result with a firm of bailiffs based in Swansea, who pushed one of their red, threatening letters through a tenant’s letterbox, without an envelope, landing in the communal hall for all to read.
A threatening letter of my own to the bailiff company garnered an apology and a discount on the debt.
Is there a get out for this? Yes of course, it comes in s40 (3):-
Subsection (1)(a) above does not apply to anything done by a person which is reasonable (and otherwise permissible in law) for the purpose—
(a) of securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or
(b) of the enforcement of any liability by legal process.
However it can be a very fine line depending on the factual circumstances in play, that might trigger the breach. The words “Anything done by a person which is reasonable” is broad enough to encompass multiple viewpoints.
Where 10 emails over 2 weeks may be considered “Reasonable” would the courts take the same view over 10 emails in a day? Bear in mind the words “In respect of their frequency or the manner or occasion of making any such demand”
S40 is a largely unknown tool but it needs dusting off and bringing into more regular usage for people working with tenants unfortunate enough to be living out their lives in the shadow private rented sector, where there are more clear breaches of it on a daily basis than you would expect and certainly one to bear in mind with the rent arrears catastrophe coming our way post 23rd August.
By Ben Reeve Lewis