Scottish Government

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Protection Against Harassment and Illegal Eviction: A Guide for Tenants

Index

1. Contents

2. The Rent (Scotland) Act 1984

3. What is Harassment

4. Is this Harassment

5. Unlawful Eviction

6. Private Landlord Registration

7. Useful addresses

As a tenant of privately let residential property, the law protects you against harassment and unlawful eviction. It does this in two ways:

• by making harassment and unlawful eviction criminal offences

• by enabling someone who is harassed or evicted to claim damages through the courts.

This booklet describes some possible types of harassment and sets out what you can do if you feel that you are being harassed or threatened with eviction. It does not deal with harassment of landlords by their tenants.

The law against harassment applies to all people living in residential property. This means that you are protected by the law whether you have a full tenancy or some other right of occupation or occupancy arrangement. It applies if your landlord personally harasses or evicts you unlawfully, or if someone else does it on his or her behalf.

This booklet explains how the law deals with these problems. It should help you decide if you are being harassed or have been unlawfully evicted. It should also help you access advice about a particular problem.

The Rent ( Scotland ) Act 1984 makes it an offence for your landlord to:

• do things which are likely to interfere with your peace or comfort, or the peace or comfort of anyone living with you

• withdraw or withhold services which are reasonably required for you to use the property as a home.

It is an offence for your landlord to act in these ways to try and get you to leave your home, or stop you from exercising your legal rights.

Anyone found guilty of an offence may be fined up to £5,000 (2006), imprisoned for 6 months, or both. In particularly serious cases, the punishment may be a fine, prison for up to two years, or both.

Harassment is a very broad term, used loosely to cover a wide range of activities. This booklet deals only with harassment when somebody is trying to drive you out of your home.

Harassment can take many forms, including physical violence. It may not always be obvious to other people that your landlord is acting in a way which is intended to drive you out of the property, or stop you from doing something.

There may however also be cases where a landlord has a good reason for doing what he or she is doing; a landlord accused of harassment may have a defence under the Rent ( Scotland ) Act 1984 if he or she has good reason for acting in a particular way.

Your landlord might do things which you find distressing; these activities may or may not amount to harassment. There may be certain things which your landlord does not do. Intentional failures to act may be an attempt to force you to leave; simple neglect might also prevent you from fully enjoying your home and result in you leaving.

Depending on the particular action or inaction, you can act in certain ways.

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Withdrawal of services

You have no electricity because your landlord has not paid the bill or has disconnected the supply

Your landlord may be committing an offence if he or she persistently withdraws or withholds services which are reasonably required for the occupation of the home. If your electricity or gas is cut off because your landlord has not paid the bills, you should contact the local office of the electricity or gas company.

Withholding keys

There is only one key to the property and your landlord will not give you another one. This is awkward because there are two (or more) tenants.

In the interests of security, your landlord may want to restrict the number of keys he or she issues to occupiers of the property, and may issue only licensed keys with a serial number which cannot be copied. In certain circumstances, not supplying a key may be a form of harassment. If the absence of a key causes intolerable difficulties, and after normal negotiation with your landlord he or she will still not give you one, you should take legal advice.

Anti-social behaviour by your landlord's agent

A person who is a friend of your landlord has moved in next door and is making life unpleasant for you.

Life may be made intolerable by a neighbouring tenant who indulges in anti-social behaviour, for example by making excessive noise late at night. If the behaviour is intended to drive you out, a criminal offence may be being committed, and you should take legal advice about this.

Demand for excessive repairs

Your landlord has asked you to do thousands of pounds worth of work.

Your tenancy agreement should set out you and your landlord's responsibilities for repairs. Even if these are not detailed in a tenancy agreement your landlord will have some duties to carry out repairs (see 'Failure to carry out repairs'). If your landlord asks you to carry out work which you think is unnecessary or not your responsibility, you should seek legal advice.

If the works are your responsibility, you may be eligible for a local authority improvement grant - check with your local authority.

Failure to carry out repairs

Your landlord has neglected the property so badly that he or she seems to want to drive you out by letting the place fall into disrepair.

Your landlord is required to keep the property in a habitable condition. This means that it must be kept wind and water tight, and otherwise fit for human habitation.

If your landlord fails to carry out the maintenance and repairs which he should, even after you have asked him or her to do so, you should seek advice on:

• what action is open to you to compel your landlord to meet his or her responsibilities

• whether the landlord's failure constitutes harassment

It may be that your landlord has a good reason for his or her (in)action. You should take legal advice on this.

Repairs which are not completed

Your landlord started to do repairs and has left them incomplete. The place is unfit to live in.

A landlord normally has a right of access to his or her property to carry out essential repairs. Arrangements should be made with the tenant to gain access at a convenient time. If work is started and left unfinished, the disruption, and the possible disconnection of services involved, may cause considerable inconvenience to the tenant. Such failure to complete may not be the landlord's responsibility, and it may be due to circumstances beyond his control. You should seek advice if approaches to your landlord do not improve the situation.

Threats and physical harassment

Your landlord has used violent/sexually/racially abusive behaviour.

If your landlord uses threatening or violent language or physical behaviour towards you, you should consult your local authority or advice centre, and should consider calling the police. The abusive behaviour could be prolonged and systematic, or perhaps be a series of isolated incidents. Where it is sexually or racially motivated, there may be grounds for action under legislation dealing with sexual and racial harassment. Where the behaviour is so severe that it could cause you to want to move out, it may constitute harassment.

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What is unlawful eviction?

Unlawful eviction takes place when a landlord tries to take back possession of a house from a tenant and does not follow the proper court process. Normally a landlord who wishes to take back his property must serve a notice to quit on the tenant giving him or her a certain length of time to leave. The law sets the minimum length of time that must be given in a notice to quit. Even when that period of notice expires the tenant cannot be evicted until the landlord has obtained a court order. For more information see the Scottish Executive's booklets Assured Tenancies in Scotland - Your Rights and Responsibilities and Regulated Tenancies in Scotland : Your Rents, Rights and Responsibilities.

Does your landlord need a court order to evict you?

In most cases a landlord must obtain a court order to evict a tenant or anyone living in the property under an occupancy arrangement. There are certain rights of occupation which are excluded from the need for a court order. They are, broadly, rights of occupation or tenancies where:

• a resident landlord (or a member of the landlord's family) shares the accommodation. The property must be the landlord's only or principal home, and 'accommodation' does not include storage areas, staircases, passages, corridors or other means of access.

• the 'tenant' is occupying the property on a temporary basis, such as for holiday purposes, people living in certain hostels, or trespassers.

Although it is not necessary to get a court order to evict someone who falls into these excluded categories, reasonable notice must still be given that the landlord wishes the property to be vacated. A right of occupation may be a tenancy even if the agreement states that it is not, so it is always worth taking legal advice if you are threatened with eviction.

Can you be compensated if you give up your occupancy as a result of harassment, or if you are unlawfully evicted?

Under the Housing ( Scotland ) Act 1988, if you are unlawfully evicted or harassed to the extent that you leave your home, the court may award compensation. The amount of compensation would be based on the difference in value between the property with no tenant and the property when occupied. The development value of the property may also be taken into account. In some cases, the difference in value could be considerable.

As with the offence of harassment the landlord may be able to put forward reasonable grounds in explanation of his or her actions and avoid having to pay compensation.

It may be that you would have other grounds for an action against your landlord for his or her behaviour, which may give rise to a separate award of compensation.

If you are able to return to your home before court proceedings are complete or, at your request, the Sheriff orders the landlord to allow you back, you will not receive compensation under the 1988 Act.

If the Sheriff decides that the eviction was provoked by your conduct or the conduct of a member of your household, then he or she may reduce the compensation possible. The Sheriff may also reduce the compensation if he or she decides that the landlord offered to let you back into your home before the court proceedings began, and it would have been unreasonable for that offer to have been refused.

If your landlord obtains an order for possession from the Sheriff by misrepresenting or concealing the true facts, and you prove this in court, the Sheriff will in most cases order your landlord to compensate you.

What if you do not want to go to court?

Where harassment is occurring as a result of a dispute between landlord and tenant it may not be necessary to take the matter to court. There may be cases where the landlord is willing to stop his objectionable activities after a letter from the local authority or the tenant's solicitors. Tenancy relations officers, who are employed by some local authorities, try to resolve disputes between landlords and tenants. Any housing advice centre or Citizens Advice Bureau should also be able to offer advice on landlord and tenant issues. However, you may find that you will need to go to court to enforce your rights - this is not necessarily as difficult or worrying as you might imagine. Local solicitors with experience in landlord and tenant matters will be able to advise you on whether you are eligible for legal aid.

Where can you go for advice?

You should take advice if you believe that your landlord is doing something, or failing to do something, in order to drive you out. Your local council may have a tenancy relations officer who can help you, or someone in the housing or environmental health departments may specialise in harassment issues. Alternatively, you can get advice from a solicitor, a law centre, a housing aid centre, or a Citizens Advice Bureau. If the harassment is particularly serious, and especially if physical violence is involved, the police should be contacted.

The decision whether to prosecute for offences of harassment rests with the Procurator Fiscal. However, other steps short of prosecution may be taken by the local authority.

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Private landlords of residential property in Scotland must be registered with each local authority in which they let property. To be registered, landlords must be approved by the local authority as 'fit and proper to be letting houses'. In deciding whether a landlord is 'fit and proper' local authorities take into consideration a range of information; this includes an obligation to consider any evidence of breaches of the law relating to housing.

Where there is evidence that a landlord has harassed or illegally evicted a tenant, this will be taken into consideration in deciding on that landlord's registration. If such evidence comes to light, after a landlord has been registered that landlord's registration may be reviewed and the landlord ultimately deregistered.

An unregistered landlord cannot legally let property. Where a landlord is not registered but is letting a property, the local authority has powers to act under Part 8 of the Antisocial Behaviour etc. ( Scotland ) Act 2004. The local authority can serve a notice which removes the landlord's right to claim rent from any tenant of the property, and/or may choose to prosecute the landlord, with a potential fine of £5000.

These penalties are significant and should be persuasive in encouraging landlords to comply with the law and manage their property to a good standard.

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7. Useful Addresses

If you have a complaint about a landlord or wish to find out if your landlord if registered, you can contact your local authority Landlord Registration team. Contact details are available at http://www.landlordregistrationscotland.gov.uk under 'About' or Local Authority Housing Department phone numbers are available in the telephone directory.

You can find your nearest Citizens Advice Bureau in your telephone directory or online at: http://www.cas.org.uk. If you have difficulty in finding a Citizens Advice Bureau you can contact the Head Office address given below - Head Office staff cannot deal with personal enquiries but will be able to refer you to your nearest office which provides independent advice and assistance.

Citizens Advice Scotland
1st Floor
Spectrum House
Powderhall Road
Edinburgh
EH7 4GB

Tel: 0131 550 1000
Fax: 0131 550 1001
Email: Info@cas.org.uk
Or online at: www.cas.org.uk

There are Shelter Housing Aid Centres (SHAC) across Scotland which provide free, independent advice and assistance. They can be found in Edinburgh , Dundee and Glasgow . Details can be found in your telephone directory or online at: http://scotland.shelter.org.uk/home/nearyou.cfm

Edinburgh SHAC
Ground Floor, Unit 2
Kittle Yards
Causewayside
Edinburgh
EH9 1PJ

Tel: 0131-466 8031
Fax: 0131-466 8033
Email: Shelterscot@shelter.org.uk

Open Monday. & Thursday: 1.00 - 4.00pm
Tuesday 10am - 1.00pm
Wednesday & Friday: Closed

Dundee SHAC
1 Courthouse Square
Dundee
DD1 1NH

Tel:01382 225 544
Fax: 01382 200 366
Email: shelterscot@shelter.org.uk

Open Monday, Tuesday & Thursday: 10am - 1pm
Wednesday: 1pm - 4pm
Friday: Closed

Glasgow SHAC
First Floor, Suite 2
Breckenridge House
274 Sauchiehall Street
Glasgow
G2 3EH

Tel: 0844 8935560
Fax: 0141-332 7346
Email: shelterscot@shelter.org.uk

Open Monday & Thurs. 1pm - 4 pm
Tuesday & Friday. 10am - 1pm
Wednesday: closed

Solicitors who specialise in landlord and tenant issues can be found by contacting the Law Society of Scotland, online at www.lawscot.org.uk/find, from Yellow Pages, www.yell.com, or at the address below:

Law Society of Scotland
26 Drumsheugh Gardens
Edinburgh
EH3 7IR

Tel: 0131-226 7411

Please note:

This booklet cannot give an authoritative interpretation of the law; only the courts can do that. Nor can it cover every case. If you are in doubt about your rights or obligations you should seek advice from a Citizens Advice Bureau or a Solicitor. Help with all or part of the cost of legal advice may be available under the legal advice and assistance scheme. Some solicitors also provide a free first interview to discuss your problem.

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