I think I have written about this before but an enquiry from another TRO of my acquaintance today made me revisit the possibilities and arguments.
A household may have been illegally evicted from their home. It’s the TRO’s job or a solicitor, to get them back in, if it is safe to do so.
You’ve got 3 options:-
· Negotiating with the people who illegally evicted them, which you can achieve by appealing to reason (good luck with that one) or threatening anything from a criminal prosecution to high levels of civil damages and RROs.
· Section 6 Criminal Law Act 1977 and using force to break them back in (more on this in a minute)
· Applying to court for an injunction forcing the landlord or agent to let them back in.
Whatever method you apply you have to do it quick, in case the landlord re-lets the property and closes off all legal routes to re-entry. For instance a court will not issue an injunction if the property has been re-let
Negotiation is always the first port of call and often it can work if the TRO is skilled enough and not easily intimidated but often the landlord or agent is giving you the run-around.
Enter option 2 the use of force under section 6 CLA 77.
So lets look at s6. Be warned, this is a technical argument likely to cause anyone but a housing law geek to fall asleep but bear with me.
Section 6 subsection (1) tells us:-
Subject to the following provisions of this section, any person who, without lawful authority, uses or threatens violence for the purpose of securing entry into any premises for himself or for any other person is guilty of an offence, provided that—
(a) there is someone present on those premises at the time who is opposed to the entry which the violence is intended to secure; and
(b) the person using or threatening the violence knows that that is the case.
So, quite clear there, it is illegal to use force to enter a premises if there is “Someone present on those premises at the time who is opposed to the entry.”
Notice that the Act there in subsection (1) (a) just mentions “Someone”, it doesn’t say that the person opposing the use of force has to be a new tenant or even the landlord. It could for instance be a builder or a cleaner. For this reason I have always taken the cautious route and if there is anybody inside the property I don’t use force myself or I don’t whistle up our mobile locksmith Richard to do the job either.
Since the 1990s I’ve done countless break-ins of properties using the protection of s6. It’s a fairly routine job for TROs up and down the UK but I have lately been re-examining s6 in a little more detail and notice something that gives me pause to think that all these years I may have actually been too cautious.
Section 6 (1) mentioned above seems fairly clear, (pay attention to those numbers) as does the subsection directly beneath it, s6 subsection (1) (A), immediately below it, which states:-
“Subsection (1) above does not apply to a person who is a displaced residential occupier or a protected intending occupier of the premises in question or who is acting on behalf of such an occupier; and if the accused adduces sufficient evidence that he was, or was acting on behalf of, such an occupier he shall be presumed to be, or to be acting on behalf of, such an occupier unless the contrary is proved by the prosecution.
Reference to “Subsection (1) above” would seem to suggest that the whole of subsection (1) is to be discounted for the purposes of using force to re-secure accommodation for a displaced residential occupier. It doesnt mention “Subsection (1) (a) as an exemption, which is how I have always treated it.
So in plain terms, can the use of force to rectify illegal evictions, still be used even if there is someone in the property objecting to the force being used?
Law is a very specific thing and there have been numerous cases that stood solely on the interpretation of one simple word.
Have I been far too cautious all this time?
Of course, if there is someone in the premises to oppose the use of force, then bringing in a locksmith may well turn the situation into a punch up but that is not the same thing as the legal provision allowing for the use of force in s6.
As with all interpretations, resolving the issue would be a simple case of road testing the argument, except in this case, getting it wrong means you’ve committed a criminal offence, which withers resolve to a degree I have to confess.
Of course I could just throw our locksmith at it and pretend I didn’t know but I don’t think he would appreciate it.
I’ve checked the bible on such Matters, LAG’s “Quiet Enjoyment” which states quite clearly that “A displaced residential occupier, a protected intended occupier, cannot commit the offence of violent entry” but that still doesn’t address the issue of whether “Someone present to oppose” might make a difference or whether, as is my theory, that the whole of subsection 1 is discounted by the way subsection 1 (A) is worded, unless Messrs Arden, Brown and Madge-Wyld who author the book, think its too obvious to mention.
In addition, just bear in mind the words from subsection 1 there in a different context “any person who, without lawful authority, uses or threatens violence for the purpose of securing entry into any premises for himself”,
A tenant, with a lawful right to occupy who is “Displaced” by an illegal eviction, by the owner would make the owner a trespasser, were they to remain in the property. Try explaining that mind-bender to the police attending. I have on many occasions but its a difficult “Sell”, that someone who owns a property could simultaneously be a trespasser in it.
But I live in hope
by Ben Reeve Lewis