Landlady out of order?

[bluebottle]

Re: Landlady out of order?

You know that.

I know that.

But would the woodentop at the enquiries counter know that?
Indeed, would he (or she) understand that trespass had occurred when the landlady entered the flat?

If they are civilian support staff, very doubtful. If they are a warranted/sworn police officer, they will have received training in dealing with landlord and tenant incidents falling outside the scope of the law applicable to landlords and tenants, generally. The questions a warranted/sworn police officer is likely to ask or should ask are -

1. Did the landlady have lawful reason or reasonable excuse to enter the flat without the consent of the tenant and in their absence?
2. Did the tenant consent to the landlady removing their belongings and locking them in the boot of their car?
3. Did the landlady have lawful reason or reasonable excuse to remove the tenant's belongings and lock them in her car without the consent of the tenant?

The other matter a warranted/sworn police officer would have to consider is whether the landlady has acted dishonestly. This is done by applying the two-part test prescribed by the Court of Appeal in the case of R -v- Ghosh [1982], the Ghosh Test.

I would be somewhat surprised, indeed, concerned, if the police do become involved in this matter and no action is taken against the landlady and no action is taken to recover the tenant's belongings.

[enquirer]

Re: Landlady out of order?

Where is the mens rea for theft?

[bluebottle]

Re: Landlady out of order?

The statutory definition of Theft, as per Section 1, Theft Act 1968, is -

"A person is guilty of theft if they dishonestly appropriate property belonging to another with intent to permanently deprive the other of it."

Sections 2-7, Theft Act 1968 explain what is and what isn't theft, etc.

If it were me, I'd go for Burglary as it is capable of proof. Don't forget that there is Attempted Burglary, Burglary per se, Aggravated Burglary and Burglary Artifice. The landlady has committed an offence under Section 9(1)(b), Theft Act 1968, that is, Burglary per se.

[enquirer]

Re: Landlady out of order?

But where is the intent to permanently deprive?

[PlanB]

Re: Landlady out of order?

Basically my friend has payed the rent on his flat up until Tuesday when he's supposed to be moving out, his partner has called the landlady today to arrange the return of their deposit.
In the meantime while my friend has been out at work the landlady has let herself into his flat, removed 90% of his belongings from his room, and locked them in the back of her car. She say's he's not allowed to have his things back until the keys have been handed in

I've read this thread with interest and a number of issues spring to mind.

Unless the Tenant's "partner" has signed a joint tenancy agreement (which it appears she has not) I would say that what the Landlord tells her is not relevant and possibly hearsay if anyone is looking at legal proceedings civil or criminal.

Has the Tenant's girlfriend simply accepted the story that 90% of the Tenant's belongings are currently locked in the boot of the Landlord's car as told to her in a phone call or has she any evidence of this silly claim? It must be a jolly big boot is all I can say unless it is a seriously unfurnished property with a minimalist Tenant. Has she been to the property to assess the remaining 10% and did the Landlord give her keys so she could have legal access or any right of entry if she's not named on the tenancy agreement? If not could the Landlord call her bluff on any trespass issue?

The Landlord has no legal obligation to discuss the return of the Tenant's deposit with anyone other than the Tenant. The Tenant should request the return of his deposit in writing only after his tenancy agreement has expired. The Landlord must respond within 14 days of any such request stating the amount to be returned and any reasons for not returning the whole amount.

I wonder whether we're being told the whole story here. Why would a Landlord who has all the rent paid up-to-date want to withhold or "steal" anything :confused2: Insanity has been one suggeston but could the Tenant's conduct be another :noidea:

[UnitedFront]

Re: Landlady out of order?

But where is the intent to permanently deprive?

Respectfully, you appear to be making the incorrect assumption that 'intention permanently to deprive' has a literal construction, when it doesn't always have.

As has been pointed out before, s.6(1) helps to define the necessary intention and, in the current context, the essence is that the landlady intends to treat the property as her own to dispose of insomuch as she is treating it as her own by keeping it until the happening of a particular event. This kind of behaviour is caught by s.6(1) - see R v Raphael (2008) for an example.

So far as I can see the problem would more likely come down to dishonesty. As has been stated, dishonesty is judged in accordance with the Ghosh test which asks the following two questions:
1) Is what the defendant did dishonest by the ordinary standards of reasonable and honest people?
2) Did the defendant realise she was acting dishonestly by those standards?

The problem could come if this lady actually believes that reasonable and honest people would not judge her to be dishonest because she intends to return the property.

But as for intention permanently to deprive, there is no issue here and no real debate to be had.

[bluebottle]

Re: Landlady out of order?

Respectfully, you appear to be making the incorrect assumption that 'intention permanently to deprive' has a literal construction, when it doesn't always have.

As has been pointed out before, s.6(1) helps to define the necessary intention and, in the current context, the essence is that the landlady intends to treat the property as her own to dispose of insomuch as she is treating it as her own by keeping it until the happening of a particular event. This kind of behaviour is caught by s.6(1) - see R v Raphael (2008) for an example. Exactly.

So far as I can see the problem would more likely come down to dishonesty. As has been stated, dishonesty is judged in accordance with the Ghosh test which asks the following two questions:
1) Is what the defendant did dishonest by the ordinary standards of reasonable and honest people?
2) Did the defendant realise she was acting dishonestly by those standards?

The problem could come if this lady actually believes that reasonable and honest people would not judge her to be dishonest because she intends to return the property.

But as for intention permanently to deprive, there is no issue here and no real debate to be had.

Theft isn't going to come into this, but Burglary is as the landlady entered the flat, as a trespasser, with the intention of removing items belonging to another and to which the other, the tenant, did not consent. With Burglary under Section 9(1)(a), Theft Act 1968, trespass is an essential point to prove, but it need only be shown that the burglar had an intention to steal. They do not have to actually steal. If they do actually steal, then Section 9(1)(b) applies. Even if Burglary, as an offence, proves contentious, the landlady can still fall foul of the offence of Blackmail (Section 21, Theft Act 1968).

I am beginning to wonder if "Landlady Out of Order?" is an appropriate title for this thread and that it should be "Landlady Off Her Trolley" as she certainly seems to be, given her behaviour.

[sunshine111]

Re: Landlady out of order?

Hi

my understanding of such a situation is that a tenant has the right to 'quiet enjoyment' of the property that they are renting. the landlord does not have the right of entry to the property without the consent of the tenant, or without giving 'reasonable notice' and should not be removing the tenants property without the tenants permission. The tenant can sue.

Scott 2016, your friend might want to approach their local housing advice department at the council. i dont know how well its known but the councils housing advice department can take action against rouge badly behaved landlords on tenants behalf. your friend should take their tenancy agreement, rent book, any communication received from the landlord, including section 21's etc, and any evidence they may have that entry was made.

if there has been a misdeed by the landlord, the council can write on the tenants behalf, prosecute if necessary or refer the matter on to an agency to take up the matter for the tenant. if it is a general misunderstanding the LA can mediate between the two parties to try and sort things out amicably.

unfortunately some landlords become landlords without first being fully aware of their limitations and obligations to their tenant, and as with consumer issues many tenants are not aware of their rights or infact their obligations to their landlord.

it may well turn out that this particular landlord has proved problematic before, in which case the LA will already have a file and can take appropriate action to hopefully help resolve the situation for the tenant.

it is to be noted that unfortunately LA's responses to such instances may not be consistent, (do not let this put you off) and will as in most instances depend on the workload of the team, and the vulnerability of the tenant concerned. however this type of assistance from LA's housing advice departments is available, but rarely utilised.

also brought to mind is, if this is the behaviour of the landlord, have they secured the tenants deposit under a relevant scheme? and notified the tenant within the first 3 weeks of their tenancy as to where the deposit was lodged? if not the tenant can take them to court and be awarded 3 times the deposit amount if the case is won? the landlord will not be able to get possession of the property without first proving that they followed the rules about protecting the depo! if your friend has rented with this landlord via a letting agency, let the lettings agency in on whats gone on. confirm any complaint in writing.

i do hope things work out, whatever form of action you take.

[bluebottle]

Re: Landlady out of order?

Hi

my understanding of such a situation is that a tenant has the right to 'quiet enjoyment' of the property that they are renting. the landlord does not have the right of entry to the property without the consent of the tenant, or without giving 'reasonable notice' and should not be removing the tenants property without the tenants permission. The tenant can sue.

Scott 2016, your friend might want to approach their local housing advice department at the council. i dont know how well its known but the councils housing advice department can take action against rouge badly behaved landlords on tenants behalf. your friend should take their tenancy agreement, rent book, any communication received from the landlord, including section 21's etc, and any evidence they may have that entry was made.

if there has been a misdeed by the landlord, the council can write on the tenants behalf, prosecute if necessary or refer the matter on to an agency to take up the matter for the tenant. if it is a general misunderstanding the LA can mediate between the two parties to try and sort things out amicably.

unfortunately some landlords become landlords without first being fully aware of their limitations and obligations to their tenant, and as with consumer issues many tenants are not aware of their rights or infact their obligations to their landlord.

it may well turn out that this particular landlord has proved problematic before, in which case the LA will already have a file and can take appropriate action to hopefully help resolve the situation for the tenant.

it is to be noted that unfortunately LA's responses to such instances may not be consistent, (do not let this put you off) and will as in most instances depend on the workload of the team, and the vulnerability of the tenant concerned. however this type of assistance from LA's housing advice departments is available, but rarely utilised.

also brought to mind is, if this is the behaviour of the landlord, have they secured the tenants deposit under a relevant scheme? and notified the tenant within the first 3 weeks of their tenancy as to where the deposit was lodged? if not the tenant can take them to court and be awarded 3 times the deposit amount if the case is won? the landlord will not be able to get possession of the property without first proving that they followed the rules about protecting the depo! if your friend has rented with this landlord via a letting agency, let the lettings agency in on whats gone on. confirm any complaint in writing.

i do hope things work out, whatever form of action you take.

Unfortunately, the landlady, by letting herself into the flat without the tenant's consent and removing his possessions and then refusing to restore them without him handing over the keys, committed one or more indictable offences for which she can be arrested without warrant. She can also have her car seized by the police as it has been used in the commission of one or more indictable offences.

Yes, report the landlady to the local housing authority and the letting agent by all means, but whether they would do anything to secure the restoration of the tenant's possessions or ensure she does not behave in this matter again is another matter.

If the tenant knows the make, model, colour and registration mark of the vehicle and has not already done so, he should report the matter to the police. They can then stop and search the vehicle on suspicion that it has stolen goods onboard.

[UnitedFront]

Re: Landlady out of order?

Theft isn't going to come into this, but Burglary is as the landlady entered the flat, as a trespasser, with the intention of removing items belonging to another and to which the other, the tenant, did not consent. With Burglary under Section 9(1)(a), Theft Act 1968, trespass is an essential point to prove, but it need only be shown that the burglar had an intention to steal. They do not have to actually steal. If they do actually steal, then Section 9(1)(b) applies. Even if Burglary, as an offence, proves contentious, the landlady can still fall foul of the offence of Blackmail (Section 21, Theft Act 1968).

I am beginning to wonder if "Landlady Out of Order?" is an appropriate title for this thread and that it should be "Landlady Off Her Trolley" as she certainly seems to be, given her behaviour.

Of course theft comes into it - for the offence to be made out, it needs to be shown either that she entered intending to steal or that she entered and then did steal some property. In this context, the term "steal" means theft.

Therefore it needs to be shown that either that:
1) She entered the building with the intention of dishonestly appropriating property belonging to another, intending to permanently deprive the other of it; or
2) She entered the building and then did, in fact, dishonestly appropriate property belonging to another, intending to permanently deprive the other of it.

Either way, she needs to be shown to have acted (or intended to act) dishonestly. I therefore come back to my original point (despite the fact that I was, in that post, agreeing with you) that if this lady (as she might well do) actually believes that she is acting honestly and that reasonable and honest people would think the same, then in law she would not be deemed to have been dishonest and would not be guilty of theft (or intended theft) and therefore could not be guilty of burglary.

[PlanB]

Re: Landlady out of order?

I suppose the point is whether the police would be motivated to do anything once the Tenant gets back his belongings tomorrow when he hands over his keys and the underlying problem has been resolved. Is it theft if you put it back?

[UnitedFront]

Re: Landlady out of order?

I suppose the point is whether the police would be motivated to do anything once the Tenant gets back his belongings tomorrow when he hands over his keys and the underlying problem has been resolved. Is it theft if you put it back?

Exactly. This is the crux of it - and in my experience, all that could be hoped for is that the police would ensure that the property is returned.

[bluebottle]

Re: Landlady out of order?

Of course theft comes into it - for the offence to be made out, it needs to be shown either that she entered intending to steal or that she entered and then did steal some property. In this context, the term "steal" means theft.

Therefore it needs to be shown that either that:
1) She entered the building with the intention of dishonestly appropriating property belonging to another, intending to permanently deprive the other of it; or
2) She entered the building and then did, in fact, dishonestly appropriate property belonging to another, intending to permanently deprive the other of it.

Either way, she needs to be shown to have acted (or intended to act) dishonestly. I therefore come back to my original point (despite the fact that I was, in that post, agreeing with you) that if this lady (as she might well do) actually believes that she is acting honestly and that reasonable and honest people would think the same, then in law she would not be deemed to have been dishonest and would not be guilty of theft (or intended theft) and therefore could not be guilty of burglary.

With the greatest of respect, UF, are you or have you been a law enforcement or legal professional?

[bluebottle]

Re: Landlady out of order?

I suppose the point is whether the police would be motivated to do anything once the Tenant gets back his belongings tomorrow when he hands over his keys and the underlying problem has been resolved. Is it theft if you put it back?

Unfortunately, you cannot turn the clock back, as once an offence has been committed, it has been committed. Returning possessions would mitigate the matter, but the decision to take the matter further would lie with the tenant. If they are happy for it to be recorded as NFA (No Further Action), that is their prerogative. Alternatively, if they want to make complaint, again, that is their prerogative, but it is unlikely to go anywhere, unless there are exceptional circumstances which make pursuing the matter further, e.g. the landlady has come to notice of police for similar incidents and received a formal caution or warning, advisable or a necessity.

[UnitedFront]

Re: Landlady out of order?

With the greatest of respect, UF, are you or have you been a law enforcement or legal professional?

No thank you, but I am in line to graduate this summer with a first class degree from a well respected university. On a daily basis I come into contact with some of the finest legal academics and professionals, I have studied the subject of criminal law in depth and I have a solid grasp and understanding of it. That being said, I am certainly no expert - but I do have a good understanding of it.

With the greatest of respect to you, as an ex-police officer, there are a huge number of police on the streets of this country that have as good as no understanding of the law. An example of this would be the two police officers that I witnessed threatening to make an arrest for "section 5 public order offence" - despite the words in question being spoken inside a private dwelling to someone in the same room, with no chance of it being heard outside that room!

I am not for one moment suggesting that you were one of this class of officer. I make the above statement simply to demonstrate that your question is really rather irrelevant because being in law enforcement does not necessarily equate to any real level of understanding.

To come back to the point, my last substantive post was correct. You yourself stated that for the offence of burglary to be made out, there either needs to be an entry accompanied by the intention to carry out one of more names offences (stealing in this instance) or there needs to be an entry coupled by the actual carrying out of such an offence.

Stealing means the same as theft for this purpose - meaning that it needs to be shown that she intended to commit theft of property or she actually committed theft. Either way, there needs to be some demonstration of dishonesty, whether intended or actual.