Don’t Shoot the Messenger #9 – How the Police can land you in hot water

Don’t Shoot the Messenger #9 – How the Police can land you in hot water

10:58 AM, 17th April 2012, About 12 years ago 36

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Don't shoot the messengerImagine the scenario. You are being threatened or assaulted in the street, your home has been burgled, your car has been stolen. Who ya gonna call? The cops of course, because they know their stuff, act appropriately and sort it out for you right? They ARE the law.

But what happens when the actions of the Police in assisting you actually puts you in the dock with criminal allegations being made against you? What do you do when you follow the advice of the law professionals and find yourself in court?

This happens thousands of times a year to landlords who ask the Police to help them with a problem tenant.

Why? Because the Police know Jack about landlord tenant law. They aren’t trained in it and they don’t want to know. The minute they hear the words ‘Landlord’ or ‘Tenant’, they take a line that it is nothing to do with them and advise from that position.

Don’t get me wrong, I’m not dissing the cops. I work closely with them and have a lot of respect for them. The problem is lack of knowledge not willingness.

There are 3 common problem scenarios that occur whenever the Police get called to an incident between landlords and tenants;

  • Wrongfully advising the landlord on their rights and obligations.
  • Telling both parties that disputes between landlords and tenants are civil matters.
  • Actually helping landlords to illegally evict tenants, thus putting the landlord in the position of having committed a criminal offence, ably abetted by the police themselves.

Wrongful advice:

Whenever a client comes in to see me alleging that they have been either harassed or illegally evicted by their landlord and they tell me Police were involved I physically groan, because I know that my job is suddenly made twice as hard.

People tend to believe the advice given to them by Police and disregard what I say because I am not an officer, so I have a devil of a job just convincing them that they have been mis-advised.

I have taken out injunctions against landlords who doggedly stick to the advice of the Police and are gobsmacked when they find themselves in court explaining themselves to the judge a week later.

Police are not trained in eviction procedures and so in terms of advice on landlord/tenant matters are as clueless as Dave down the pub, with his “A mate of mine told me” school of landlord law.

Disputes as civil matters

This is almost a knee-jerk response to incidents where there is no violence, and sometimes, even when there is violence.

Sure, disputes can be dealt with in civil courts but allegations of breaches of the Protection from Eviction Act 1977 are criminal offences, not civil ones. It is the council which prosecutes under this legislation, not the Police and that is where the misunderstanding arises.

This is something that adversely affects tenants more than landlords. When being faced by imminent illegal eviction Police could take action under Section 25 of the Police and Criminal Evidence Act 1984 and arrest anyone who they suspect of committing a criminal offence, but I have never known them to do this in 22 years.

Police illegally evicting tenants

Yes this really does go on, in fact in my area in about 50% of reported cases.

In 2009 the case of Naughton v. Whittle and Chief Constable of Great Manchester Police went through the criminal courts. Manchester Police had to pay a few grand in damages to Ms Naughton for their part in participating in an illegal eviction, as did the landlord, amounting to £11,000.

I recently had a case where an outgoing tenant hadn’t been correctly evicted by the landlord before arranging for a new tenant to move in, who promptly assaulted the old tenant upon finding her still in occupation. Cops were called, ambulance was called. The outgoing tenant complained before being carted off in the ambulance as a result of the assault and the attending officers astonishingly helped the new tenant carry her boxes upstairs to the flat.

When I called the incident room for a report they had logged it as a civil dispute and didn’t even mention the assault, despite the fact that they were there when the ambulance arrived.

What I have been getting a lot of lately is cops being called to an eviction in progress, who grab a piece of paper, even torn from their Incident Report Books (IRBs) and writing a short paragraph saying “I promise to vacate the accommodation in 24/48 hours”, or by the weekend, and getting the tenant to sign it. It has become almost a trend so I would imagine there is some advice doing the rounds in the Police canteen at the moment.

The landlord not surprisingly then goes back 2 days later to change the locks on Police instruction. Or the tenants come to me and I ring the landlord to tell them they have been mis-advised and having the usual endless argument.

I get called to a lot of illegal evictions in progress. It usually starts with me arriving to an angry scene with the landlord and their family or associates chucking bin liners through the door, packed with the tenant’s belongings while I chuck them back through the door and read them the riot act.

The landlord often threatens me and the tenant so I’m forced to call the Police who arrive give the standard advice.

Now to their credit they do instantly listen to what I say and back off, freshly informed but so many of these incidents happen in the evening when I’m not around.

We have repeatedly complained to the Borough Commander about their officers and get letters back saying they will investigate but still it goes on.

Education is the key. When I was doing the job back in the 1990s I trained new Police every 6 weeks and we built a decent relationship. We are trying to set this up again to eradicate the problem but the Police is an even more bureaucratic monster than the council so progress is slow.

Police involvement is a common complaint amongst TROs right across the UK. It’s frustrating and damaging to the rights of both landlords and tenants alike.

So if you are a landlord, please don’t take the Police’s advice as Gospel. Just because the uniform is telling you what you are allowed by law to do it doesn’t mean you are being correctly advised and you will be just as liable to prosecution as any landlord acting in a criminal way.

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9:36 AM, 19th April 2012, About 12 years ago

I once had a situation of a tenant pinching stuff from the house to sell off (after they should have left). I mentioned it to the Police who went round to 'have a word' and also mentioned to the tenant they should no longer really be there anyway. The tenant left (good?) a week later to go to live in a completely different part of the country. But they later tried to complain that I had conspired with the Police to bully them out illegally by this action.
My feeling is that as police have the privilege to some extent of being able to 'physically drive' things .... in some ways they should be responsible for their direct actions as well as the indirect actions they 'inspire' - but that would never hold I guess. After all it does appear that the Law, police, tenants, houses, landlords are all separate toys for the courts to play with.

Ben Reeve-Lewis

12:31 PM, 19th April 2012, About 12 years ago

I think the tenant was on a hiding to nothing with that arument from the start Gerald. how could you illegaly evict if he already moved out?

Funnily enough I have just this morning interviewed a woman and her daughter who are being threatened with illegal eviction tomorrow. The landlord has already assaulted the daughter who is 8 months pregnant so they called the cops who for once were very helpful and told her to change the locks to keep him out. Normally I would advise that myself but in this case they only rent 2 rooms in this unlawfully sub-let council flat, so they cant exclude him from the rest of the premises.

So despite being helpful the Police have still given the wrong advice. They ran off to put the old lock back in place 

15:38 PM, 19th April 2012, About 12 years ago

Hi Ben,
I've been in the letting business for over 40years and like you i've seen and heard most things with two exceptions that are as rare as hen's teeth but i'll get to that later.
I spent many years as the vice chairman of our local landlords association giving advice and assistance to landlords on correct procedure and the law with of course the caveat that I am not a solicitor and if in doubt contact a suitibly qualified expert.
Most of the people I advised were small landlords who had a day job and thought commonsense and a wilingness to do the right thing would carry them through (we do not tend to get the wrong un's because those sort do not join landlords associations).
I realised early that what I was dealing with was naivety and an almost childlike belief in British justice. So my focus was on bringing them up to speed with reality. I developed a two part stratergy, the first was to tell them the bad news and the second, the better news.
The first thing I told them is that they were about to enter the mindfield of landlord and tenants law, and like a real mindfield if they didn't watch their footing they were going to get their legs blown off. The second thing I told them was to forget any cosy notions they might have about commonsense, fairness and justice (which was a little bit of scaremongering, but I needed them to understand what it was the letter of the law that mattered not a belief that a court would see that they had acted out of honest motives). The number of times I've had families say "but it's our property" and I've had to painfully explain that as soon as they grant a tenancy it's the tenants property till that tenancy has lawfully ended. What they retain is management and reparing obligations.
The trouble is too many landlords still believe they will get commonsense and justice in the courts.
Regards, Tony Altman

16:13 PM, 19th April 2012, About 12 years ago

In addition to my first comment.
Regarding police advising landlords to illegally evict.
 The general public are conditioned and programmed to listen to and obey the instructions of the police and in certain circumstances it is unlawful for them to fail to obey the lawful command of a police officer. Therefore it is not unreasonable for people advised and intructed by the police to act on that information as the police are highly trained professionals in the business of law enforcement.
 It follows therefore, that they have a duty of care and due diligence to both landlords and tenants to not wrongfully and recklessly advise and instruct on matters they should reasonably know they have unsufficient knowledge
. It would appear that in the cases quoted the police have been both negligent and reckless in giving their advice.
 They should have advised both parties to obtain independent advice. Therefore in advising the landlords in this manner they are culpable and complicit in an unlawful act of illegal eviction.
 It follows that they are primaface guilty of recklessness, criminal negligence and possibly conspiracy, and should be held to account under law as instigators of these actions.
I doubt that this happened, and to then only prosecute a landlord who acted in the utmost good faith is a grave miscarriage of justice.
If we take this discussion a step further we can see that based on these facts it would be wise and prudent for any person to conclude that it would be dangerous to assume that any public official or officer was giving correct and lawful interpretation of the law
 Therefore it would be reasonable for anyone to question and delay acting upon any instruction or notice served on them by a public government or local government body. until they received comprehensive and independent advice on their legal obligations.
I realise this may make life a little difficult, especially for local authorities but since we are held legally accountable for our actions and those giving reckless and unlawful advice appear to be totally unaccountable, it would appear to be the only rational and sensible course of action.
tony altman

16:22 PM, 19th April 2012, About 12 years ago

I dont normally type( one finger) 
thats minefield not mindfiel
tony altman

Ben Reeve-Lewis

16:37 PM, 19th April 2012, About 12 years ago

Thanks for that Tony. You are 100% right on all counts.

The metaphor I often use is to tell landlords that the minute they hand over the key to the tiniest studio flat they are immediately in the same legal position as a council with 10,000 properties on its books. Whcih of course is true.

My job is to prosecute landlords for breaking those rules but like you I find that most breaches are done in ignorance and that naive belief in the legal system.

The first time I ever trainied any group of people was 45 coppers in uniform at a large training event. I began by talking about the legal system and how frustrating and hard it is to work landlord and tenant law within it. Feeling cheeky I said "Its so hard to get evidence against landlords to prosecute that it hardly ever happens. Its no wonder that you lot fit people up from time to time"

There was a horrible frozen moment when I thought I would be thrown out and then they all roared with laughter.

20:02 PM, 19th April 2012, About 12 years ago

I think the really perplexing and frustating thing for new LL is the whole iniquitous system of the law being stacked very much against the LL.
I think if LL knew what they might be getting into, they wouldn't bother and just leave the money in a savings account.
I put myself very much in that position.
I will NEVER make a profit out of my property as my losses, caused by wrongun tenants are too enormous.
I would have been better off leaving the money in a savings account.
I know what to do now; but that is being wise after the event.
The tenants get away with everything leaving massive damage behind them.
Very few LL manage to recover.
Effectively a tenant can rob a LL blind and nothing happens to the tenant.
I know as it has happened to me on 4 occasions.
I think it should be almost compulsory that you have to pass an exam before you are permitted by a lender to borrow funds for BTL property so that you know what the ramifications are of becoming a LL.

17:50 PM, 15th December 2012, About 11 years ago

Hiya Ben,

Interesting post to read, thanks!

I'm in a situation whereby I was a lodger with a lady with undisclosed mental health issues. I gave my months notice and 2 weeks later I returned home to find she had locked me out, retained all my possessions with no notice at all. I called the police who initially attended but on refusal to let me in to collect my goods or even pass them outside they washed their hands of me. One even said "go through the civil process, it's much quicker than what we can do and you will have your property back within a week. One advised her should I continue to contact her or call the Police I could be warned for harassment!
18 months further on, I have the property back that she has chosen to give, retaining property that was of sentimental value to me, am 18k out of pocket due to solicitors fees, her refusing to honour the ccj and doing a moonlight flit, the police force solicitor is stating that unlawful eviction doesn't apply to lodgers (no but there is the classification of reasonable notice) and that they were right by telling me it was a civil matter therefore I have no grounds for complaint! I am sure this isn't the case but am struggling to find case law to support this! Any chance you know of a stated case at all?

Kind regards and happy Christmas,
From a person who will never rent or lodge again!!,

21:36 PM, 15th December 2012, About 11 years ago

Lodgers may be removed from a property with the assistance of police providing the lodger has been given a months notice.
Lodgers ONLY have security of tenure for a month.
You can of course give longer but are NOT required to do so.
A lodger ONLY has to give 1 months notice to the live-in LL.
Do NOT allow a lodger to have a lockable door to their dedicated accommodation, otherwise you will have created a defacto 6 month AST.
Then you will have to follow standard eviction procedures.

Ben Reeve-Lewis

10:29 AM, 16th December 2012, About 11 years ago

Hi Xlodger

Well for once the police gave you the right advice in the main. The legal status of a Lodger is known as Excluded Licensee and what they are excluded from is the normal eviction process vis a possession order, so they cant be illegally evicted as such. There is a requirement that reasonable notice be given, its not a case law its actually in the Housing Act 1988 that created Excluded Licenences. Prior to that lodgers were what was termed Restricted Contract Tenants, the landlord had to serve a 28 day notice to quit and then get a possession order.

Reasonable notice isnt defined but custom and practice generally ties it in to the rental period, so if the lodger pays monthly then people in my position would be looking for 1 month's notice but its not hard and fast. I meet people who have been given a months notice but the landlord changes the locks after a week but I know I wouldnt get an injunction for re-entry because the judge would take the view that it would be pointless, given the person would lawfully have to go not long after.

I dont know what you can do about the rest of your belongings apart from maybe use a tracing service like Finder Monkey But then you also have no guarantee that she still has the goods. If you got damages for the loss and she cant pay then you are back to square one. Having said that I stil think it could be prosecuted by the police under the Theft Act, section 1 of which states (1)
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. The key being the bit that syas "With the intention of permanently depriving. She could argue that she was holding it for some spurious reason and then lost it, which might make it not technically theft. I dont hold out much hope to be honest mate

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