Introduction

The law protects residential occupiers against harassment and unlawful eviction by criminalising both activities, and by enabling a person who has been harassed or unlawfully evicted to claim damages or reinstatement through the civil courts. Harassment can take a wide variety of forms, and perceptions of what behaviour by a landlord constitutes harassment and what is reasonable may be interpreted quite differently by the other actors involved: tenants, local authority officers, the police and magistrates. Their understanding may not accord with what is covered by legislation, and they have “a considerable amount of discretion in interpreting landlords’ behaviour, the severity of the case and how it should be dealt with” (Marsh et al, 2000, para 3.3).

The number of prosecutions for unlawful eviction and harassment is, and always has been, low given that they are “persistent problem[s] seemingly endemic within this residualised sector in which understanding of the consequences of letting is often poor and respect for the law limited” (Stewart, 1996, p 101). As a result, there appears to be a widespread assumption that the law on harassment and unlawful eviction is ineffective. The purpose of this chapter is to consider whether such criticism is justified, bearing in mind the rights and interests of the actors who operate within it, including the statutory security of tenure system to which they are subject.

Background

The most heavily regulated housing tenure has been the private rented sector. As demand for rented housing generally outstrips supply, the landlord is usually in the stronger bargaining position. It is this inequality which led to government intervention in the relationship, in particular to protect the tenant from rising rents and eviction. From 1915 until 1988, “the Rent Acts … constituted an interference with contract and property rights for a specific purpose – the redress of the balance of advantage enjoyed in a world of housing shortage by the landlord over those who have to rent their homes” (per Scarman LJ in Horford Investments Ltd v Lambert [1976] Ch 39 at 52). In general, however, such intervention has not been motivated by notions of distributive justice; apart, perhaps, from the 1965 Rent Act, it has tended to be an ad hoc response to times of particular housing crisis, or an attempt to deal with the aftermath of those crises.