I am frequently asked to advise Landlords and Managing Agents when issues arise in hostel accommodation and what steps they need to take to recover possession. In theory, this should be relatively straightforward.
If the accommodation is genuinely a hostel as defined by Section 622 of the Housing Act 1985 and the Landlord is of the prescribed type as required by the Protection from Eviction Act 1977 then the occupiers will likely occupy in accordance with an excluded licence. An excluded licence is designed to ensure that hostel accommodation can be managed effectively and in order to do this the Landlord is able to recover possession without having to comply with the usual formalities such as service of a Notice to Quit/Notice of Seeking Possession or obtaining a possession order.
Notwithstanding this, Landlords must exercise care and caution when deciding to take possession without a Court order. This is so as to ensure that there is no offence committed; that the terms of the licence are complied with and that, if required, consideration has been given to the proportionality of the eviction and/or the Public Sector Equality Duty (PSED) under the Equality Act 2010. It is also important to ensure that where there is an Agent managing the accommodation there is full compliance with the Landlord’s eviction processes and procedures.
Where possible and before any step is taken to give notice to the Licensee to leave, the Landlord/Agent should ensure that if the occupier is disabled for the purposes of the Equality Act 2010 and the reason for termination is linked to the disability consideration is given as to whether the eviction would be a proportionate means of achieving a legitimate aim. Even if the eviction is not linked to disability, if the Landlord is a public authority or exercising a public function, due regard should to be had to the PSED.
Before any step is taken to remove the Licensee, reasonable notice must be given. The length and form of notice can depend on the nature of the breach and the factors of each case – for example, if there is serious nuisance and anti-social behaviour such as violence and threats of violence, the notice period may be very short. The notice does not need to be in writing and can be given verbally, however it is always good practice to give written notice, even if it is by text or email. It is also important to consider the Licence Agreement which will often contain further information as to the length of notice that may be given in different circumstances, for example the Landlord will usually give 28 days’ notice unless there is serious nuisance, violent or disruptive behaviour.
Once the Notice has expired the Landlord can peaceably evict the occupier. However, this does not give the Landlord the right to forcibly remove the occupier and would usually be by way of a lock change while the occupier is out of the accommodation. It is imperative that there should be no attempt to use force to secure the eviction and the Landlord or Agent may commit an offence if violence is used. An offence could also be committed if there is violence against property, for example forcing open the door if the Landlord or Agent is aware that there is someone in the room. The Landlord will also be responsible for any belongings left in the room so should make sure to follow the correct procedures, including service of a ‘Tort Notice’.
It is imperative that the Landlord/Agent must ensure care is taken to ensure that any steps taken in the process of the eviction are undertaken lawfully. If securing the room is not possible advice could be given in respect of alternative means, such as securing an injunction with exclusion provision. If in doubt legal advice should be sought before any attempt is made to evict as failure to ensure compliance could lead not only to reputational risk but also to potential claims for compensation/reinstatement for unlawful eviction.
For more information, please contact Donna McCarthy.
