I am always mistrustful of anyone who self-labels themselves “An expert in their field”.
I think that anyone who gets near enough to earn that title knows enough about what they do, to be acutely aware of the things they don’t know.
Despite working for 31 years in landlord and tenant law, there is still loads I don’t know and that weighs more heavily on me than the things I do know. I end up living in a permanent state of uncomfortable doubt when someone asks me a question. “I’m probably right” being as close as I can get it.
I have lived in that squirming state all week, working with Safer Renting’s caseworkers, Molly and Juke, researching a landlord’s defence to a rent repayment order on the basis that they didn’t know about the law and like most other people, nagging away in the back of my mind is that old dictum “Ignorance of the law is no defence” but have found myself disabused of that simplistic notion by research that has driven me mad for days.
Whilst ignorance is generally true there is also a legal concept known as “Reasonable excuse” for not knowing.
Having said that, you’d have trouble arguing that you had a reasonable excuse for not knowing that killing another human being was a criminal offence but applying that dictum in things like property licensing or rent repayment orders it does actually work but as usual with housing law it is far from clear cut.
For instance, being ignorant of licensing regulations isn’t an automatic get out of jail free card, neither is blaming it on your agent.
In the case of Laura Northover, Hannah Blackmore, Christopher Spedding, Alexander Wells and Savannah v. Khalida Hashim, the tribunal noted “The Respondent has been a landlord for 11 years. She has legal responsibilities and needs to be proactive about finding out what the law is”.
And in Kristin Shields, Hannah McMillan, Sophie Crow, Chloe Hewer, Francesca Foster v. Simon Rose and Sheradene Rose the tribunal noted ” It is not a defence to claim that they were unaware that an HMO licence is required. The fact that owners of a property have appointed reputable managing agents to manage their property is not a defence constituting “a reasonable excuse”, albeit that it may be important mitigation.”
Note there that whilst reasonable excuse is not in itself a complete defence to an RRO it could be used in mitigation, allowing the tribunal to reduce the award, something they have done by as much as 55%, as in Rhiannon Lawrence, Joshua Griffin, Emma Tracey, Cedron Sion and Finn Paul v. Asaf Cohen.
So to recap. Ignorance of the law is no defence but reasonable excuse could be. However even if reasonable excuse doesn’t wash as a full defence, a tribunal could still reduce an award on the same basis.
But whilst we are on the subject, where does ignorance of the law or reasonable excuse fit in where the police are called by a tenant in the middle of an illegal eviction and they end up siding with the landlord, even helping the landlord carry out the eviction?
I doubt that any court would be able to reconcile ignorance of the law with a police officer, let alone reasonable excuse.
The bald fact is, that police officers assisting in a criminal offence should have no excuse whatsoever and yet this goes on repeatedly.
The police certainly need educating on the basics of landlord and tenant rights and obligations, something that regular readers will know, Safer Renting have been involved in with the Met Police training programme but should TROS, solicitors or housing advisers be standing back on this issue?
If a police officer is assisting in a criminal offence, should they not also be subject to any form of civil or criminal redress as the landlord or agent?
As a seasoned TRO myself I can imagine the meeting with the council’s legal team when you suggest going after the police alongside the landlord. It just wouldn’t happen but why not? As we have already seen, ignorance of the law and reasonable excuse is unlikely to apply to them.
A perpetrator is a perpetrator, regardless of whether or not they are wearing a uniform, as recent events in both the UK and the USA are bearing out.
We can work at educating the police but until they get the message, should we not also be treating them as criminal perpetrators when they attend an illegal eviction and side with the landlord?
It doesn’t happen because the local authority prosecutes breaches of the Protection from Eviction Act 1977 and a TRO cant do it on their own without the support of the council’s legal department, which as I say, isn’t going to happen. I mentioned the possibility once when I was the TRO for the London Borough of Lewisham and I had to fetch the smelling salts and fan the head of legal’s prostrate form with a lace hanky..
As for civil damages, well yes, that is indeed an option.
Gibson v. Douglas (2016) is a fascinating case in point. The landlords went to the property to illegally evict the tenants.
Police were called, who ended up carrying out the eviction itself. When the tenants tried to sue the landlord the court decided that the landlord was not the perpetrator of the illegal eviction, even though they had gone to the property with that intention.
The perpetrators in law were the police, so the tenants, in seeking justice, had misidentified the perpetrator, who was actually the police and lost the case.
I am honestly all for educating the police and have worked endlessly to do this in my time but at the end of the day, if they aren’t getting it, maybe the way to ram the point home is for the local authority to prosecute them, except it wont happen because council legal teams wont back it.
I’m not being all gung-ho or anti police here. I genuinely think that if the police were subject to even just a couple of prosecutions for their part in illegal evictions they would really change their game. It doesn’t take a sledgehammer to crack a walnut, just a few well weighted public legal cases to remind the police who they work for..
by Ben Reeve Lewis