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Landlord Locks Out Tenant

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    #32
    beauf
    Closed Accounts Posts: 22,651 ✭✭✭✭beauf


    Kings Inns or bust wrote: »
    Please read through OP, feel free to reframe it. If your reframing of it is; there is no crime here they won't attend then thank you for your contribution.

    In my opinion. The OP doesn't mention a crime. Just a breach in LL and/or Tenant obligations. The Cops will have no interest in that. Perhaps if there was some other history crimes, or violence they may take an interest. But otherwise....

    That is the problem, people don't understand LL/Tenant obligations, or how they are (or aren't) enforced.


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    #33
    Pat Mustard
    Registered Users Posts: 9,554 ✭✭✭Pat Mustard


    Kings Inns or bust wrote: »
    Basically Tenant (T) returns home to find the property they rent has had the locks changed. Landlord (L) has locked the tenant out for no reason other than he has.

    If the tenant is entitled to lawful possession of the property, then he may be considered an "owner" for the purposes of s.19c of the Public Order Act, as inserted by s.24 of the Housing Act 2002.

    In such case, perhaps there is some argument to be made that in changing the locks, the landlord has brought an object (the new locks) onto the land and in so doing, has denied the owner (the tenant, being the lawful occupier of the land) access to the property, which denies them use ore amenity of the property, which is a criminal offence under s.19c of the Public Order act (as inserted by s.24 of the Housing Act 2002):

    Link:
    19C.—(1) A person, without the duly given consent of the owner, shall not—
    (a) enter and occupy any land, or
    (b) bring onto or place on any land any object,
    where such entry or occupation or the bringing onto or placing on the land of such object is likely to—
    (i) substantially damage the land,
    (ii) substantially and prejudicially affect any amenity in respect of the land,
    (iii) prevent persons entitled to use the land or any amenity in respect of the land from making reasonable use of the land or amenity,
    (iv) otherwise render the land or any amenity in respect of the land, or the lawful use of the land or any amenity in respect of the land, unsanitary or unsafe,
    (v) substantially interfere with the land, any amenity in respect of the land, the lawful use of the land or any amenity in respect of the land.
    Going on the assumption Gardai are aware or have been made aware of the above provision, perhaps this legislation would be enough to involve them.


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    #34
    Grolschevik
    Registered Users Posts: 3,472 ✭✭✭Grolschevik


    Pat Mustard wrote: »
    If the tenant is entitled to lawful possession of the property, then he may be considered an "owner" for the purposes of s.19c of the Public Order Act, as inserted by s.24 of the Housing Act 2002.

    In such case, perhaps there is some argument to be made that in changing the locks, the landlord has brought an object (the new locks) onto the land and in so doing, has denied the owner (the tenant, being the lawful occupier of the land) access to the property, which denies them use ore amenity of the property, which is a criminal offence under s.19c of the Public Order act (as inserted by s.24 of the Housing Act 2002):

    Link:

    Going on the assumption Gardai are aware or have been made aware of the above provision, perhaps this legislation would be enough to involve them.

    Hmm. As an aside, would that provision seem to preclude the occasionally reported practice of owner management companies withdrawing access (by not issuing the appropriate entry mechanism) to unit owners (or their tenants) with whom the OMC is in dispute?

    Edit: this provision:

    19C.—(1) A person, without the duly given consent of the owner, shall not—
    (a) enter and occupy any land, or
    (b) bring onto or place on any land any object,
    where such entry or occupation or the bringing onto or placing on the land of such object is likely to—
    (i) substantially damage the land,
    (ii) substantially and prejudicially affect any amenity in respect of the land,
    (iii) prevent persons entitled to use the land or any amenity in respect of the land from making reasonable use of the land or amenity,
    (iv) otherwise render the land or any amenity in respect of the land, or the lawful use of the land or any amenity in respect of the land, unsanitary or unsafe,
    (v) substantially interfere with the land, any amenity in respect of the land, the lawful use of the land or any amenity in respect of the land.


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    #35
    cursai
    Registered Users Posts: 2,915 ✭✭✭cursai


    Kings Inns or bust wrote: »
    I admire your aspirational position that law students do anything with lectures or the resulting 'notes' until approximately five minutes before the exam.

    Also following up on some of your 'smart' comments in the other thread. They're grand if you are that smart but I suspect you'll fail to enage here for, well lets just say - implied reasons. I'll argue all day long with someone like 4ensic whos backing up his points, it might even get heated, I've no doubt some jibes will be thrown. If all you have though are smart comments that'll become apparent rather quickly I'd imagine.

    I don't understand the first paragraph there. I backed up my points. You didn't. You showed nothing in either thread except your own personal interpretation of the law and added a couple of personal variations of it.

    'aspirational'...the irony of that.
    "Implied reasons".....Huh??????


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    #36
    cursai
    Registered Users Posts: 2,915 ✭✭✭cursai


    How does a tenant prove he is an occupier of the property and what proof do the Gardai accept. They don't, they have no ability to determine the legitimacy of these proofs or documents. As far as they are concerned. The house is locked. Any damage done is criminal damage following a complaint from the landlord.
    Any dispute with regards to right to entry is a CIVIL matter and can be hashed out in front of a judge in a civil court.

    The Gardai in their proper place are only there to prevent a breach of the peace not enforce ownership or entry to a property that both parties claim a right to.


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    #37
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    Pat Mustard wrote: »
    If the tenant is entitled to lawful possession of the property, then he may be considered an "owner" for the purposes of s.19c of the Public Order Act, as inserted by s.24 of the Housing Act 2002.

    In such case, perhaps there is some argument to be made that in changing the locks, the landlord has brought an object (the new locks) onto the land and in so doing, has denied the owner (the tenant, being the lawful occupier of the land) access to the property, which denies them use ore amenity of the property, which is a criminal offence under s.19c of the Public Order act (as inserted by s.24 of the Housing Act 2002):

    Link:

    Going on the assumption Gardai are aware or have been made aware of the above provision, perhaps this legislation would be enough to involve them.

    Would a house/dwelling and it's curtilage satisfy a test to be "land" to qualify under the act I wonder?

    Land would seem to suggest parks, recreational areas etc.


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    #38
    cursai
    Registered Users Posts: 2,915 ✭✭✭cursai


    GM228 wrote: »
    Would a house/dwelling and it's curtilage satisfy a test to be "land" to qualify under the act I wonder?

    Land would seem to suggest parks, recreational areas etc.

    It would but how to prove ownership. If but have equal claims Gardai cant decide the matter and no criminal offence has occurred.


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    #39
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    cursai wrote: »
    It would but how to prove ownership. If but have equal claims Gardai cant decide the matter and no criminal offence has occurred.

    I would agree, ownership would need to be established first (via civil recourse) before Gardaí could consider any criminal action IMO.


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    #40
    cursai
    Registered Users Posts: 2,915 ✭✭✭cursai


    GM228 wrote: »
    I would agree, ownership would need to be established first (via civil recourse) before Gardaí could consider any criminal action IMO.

    Exactly. In the real world Gardai avoid such situations. Practice and theoretical interpretation of the law are two different things. One is irresponsible when given as advice. This situation is immediately a civil matter unless either party is i.e. aggressive or abusive etc(invoking breach of the peace) and even then there has to be an independent complaint from a member of the public in most situations. AFAIK it is best practice.
    If we could interpret read the law so freely the Gardai would be involved in any problem in peoples lives.


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    #41
    foggy_lad
    Closed Accounts Posts: 20,373 ✭✭✭✭foggy_lad


    would the landlord removing the old lock when the tenant is still on the premises be seen as theft? with the "peaceful occupation" clause they are effectively removing property they have no legal entitlement to interfere with unless they have permission from the tenant.


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    #42
    cursai
    Registered Users Posts: 2,915 ✭✭✭cursai


    foggy_lad wrote: »
    would the landlord removing the old lock when the tenant is still on the premises be seen as theft? with the "peaceful occupation" clause they are effectively removing property they have no legal entitlement to interfere with unless they have permission from the tenant.

    Both parties have right to the property. the landlord has a right to alter/secure it. Whether one party has breached the terms of the contract is a civil matter i would have thought.


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    #43
    foggy_lad
    Closed Accounts Posts: 20,373 ✭✭✭✭foggy_lad


    cursai wrote: »
    Both parties have right to the property. the landlord has a right to alter/secure it. Whether one party has breached the terms of the contract is a civil matter i would have thought.

    The LL only has rights to enter the property in an emergency without the permission of the tenant.


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    #44
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    foggy_lad wrote: »
    The LL only has rights to enter the property in an emergency without the permission of the tenant.

    That is a matter of contract, breach of which is a civil matter.


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    #45
    foggy_lad
    Closed Accounts Posts: 20,373 ✭✭✭✭foggy_lad


    4ensic15 wrote: »
    That is a matter of contract, breach of which is a civil matter.
    Afaik it is considered trespassing, which is a criminal matter?

    The landlord may own the property but gives up most of their rights including access when they rent the property to others.


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    #46
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    foggy_lad wrote: »
    Afaik it is considered trespassing, which is a criminal matter?

    Trespassing, of itself is not criminal.


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    #47
    foggy_lad
    Closed Accounts Posts: 20,373 ✭✭✭✭foggy_lad


    4ensic15 wrote: »
    Trespassing, of itself is not criminal.
    Surely if someone enters without invitation or breaks into your home it is a criminal matter?


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    #48
    Kings Inns or bust
    Closed Accounts Posts: 631 ✭✭✭Kings Inns or bust


    beauf wrote: »
    In my opinion. The OP doesn't mention a crime. Just a breach in LL and/or Tenant obligations. The Cops will have no interest in that. Perhaps if there was some other history crimes, or violence they may take an interest. But otherwise....

    That is the problem, people don't understand LL/Tenant obligations, or how they are (or aren't) enforced.

    I'm a bit confused how you arrive at the conclusion no issues arise if the LL is attempting to prevent a locksmith or if someone has broken in, would you mind explaining that a bit further?

    The problem is put very succinctly there and you're correct people don't understand, people seem to be very willing to walk away when they've (to my mind at least) a perfect right to peaceful enjoyment of their dwelling. People also don't understand the ownership of real property is not as absolute as chattels. A lease is a serious legal commitment - there are no formal requirements, if people wish to use verbal or poorly drafted leases they've every right too, the RTA will step in and should step in on the side of the tenant.
    GM228 wrote: »
    You may be looking for a while :)

    I'm curious is there any Irish case law regarding a duty of care owed compelling Gardaí go act? I don't believe so?

    Case law in the US and the UK have shown that is not the case in those jurisdictions, and they were just about an onligation to act in general, they dealth with threats to life.

    Leave it with me, I'll dig it up for you. I'll have to go through notes but it's eating at me! I know there's cases where guards did not act on reported crimes. A girl walking into a station claiming sexual assault spring to mind but work was busy and the main thrust of this thread is occupying my down time at the moment!
    Grolschevik wrote: »
    Hmm. As an aside, would that provision seem to preclude the occasionally reported practice of owner management companies withdrawing access (by not issuing the appropriate entry mechanism) to unit owners (or their tenants) with whom the OMC is in dispute?

    Edit: this provision:

    19C.—(1) A person, without the duly given consent of the owner, shall not—
    (a) enter and occupy any land, or
    (b) bring onto or place on any land any object,
    where such entry or occupation or the bringing onto or placing on the land of such object is likely to—
    (i) substantially damage the land,
    (ii) substantially and prejudicially affect any amenity in respect of the land,
    (iii) prevent persons entitled to use the land or any amenity in respect of the land from making reasonable use of the land or amenity,
    (iv) otherwise render the land or any amenity in respect of the land, or the lawful use of the land or any amenity in respect of the land, unsanitary or unsafe,
    (v) substantially interfere with the land, any amenity in respect of the land, the lawful use of the land or any amenity in respect of the land.

    A few of us have made the assertion that OMC are on very dodgy ground here. This just seems to add to it.
    cursai wrote: »
    I don't understand the first paragraph there. I backed up my points. You didn't. You showed nothing in either thread except your own personal interpretation of the law and added a couple of personal variations of it.

    'aspirational'...the irony of that.
    "Implied reasons".....Huh??????

    I'm willing to bury the hatchet if you are. It's not about point scoring but it is about winning or losing the argument, let's make that our focus.
    cursai wrote: »
    How does a tenant prove he is an occupier of the property and what proof do the Gardai accept. They don't, they have no ability to determine the legitimacy of these proofs or documents. As far as they are concerned. The house is locked. Any damage done is criminal damage following a complaint from the landlord.
    Any dispute with regards to right to entry is a CIVIL matter and can be hashed out in front of a judge in a civil court.

    The Gardai in their proper place are only there to prevent a breach of the peace not enforce ownership or entry to a property that both parties claim a right to.

    The proof in most real world scenarios is pretty easy - it'll go like this:

    Tenant: ****er has locked me out guard!
    Landlord: You're damn right, ****ing never paid the rent/my son needs the gaffe/I don't like the smell of ye cooking.

    QED the person is at least proved to have been a tenant at some point.

    Now I'm conscious of the 'OP can change the scenario line so I concede the following scenario:

    Tenant:The ****er has locked me out!
    LL: I've never seen this person in my life, please remove this crazy person.

    I think it's fair to say the latter scenario is less likely - granted it could happen. I'd be fairly sure at that point the guard could ask to get entry as the tenant may point to a bill etc.
    cursai wrote: »
    Both parties have right to the property. the landlord has a right to alter/secure it. Whether one party has breached the terms of the contract is a civil matter i would have thought.

    A salient point. Let's imagine that both parties prove they have a right to the property - again we can argue the other scenarios but let's for the sake of this point imagine that it's proven.

    Ultimately you've two competing constitutional rights: the right to private property, the the inviolability of the dwelling. The latter trumps the former and is also one AGS are likely to be most aware of especially if this happens in Crumlin!

    The guards have to make a call, one person has to be told that their rights are potentially being breached and they'll need to go to court to enforce those rights. Is it going to be a guy who can go home or the guy who is being asked to wander the streets that night?

    I simply don't think we live in a society as perverse as to enforce the latter.

    Now, we can argue the mechanism in which the guards become involved but is it not a fair statement that with two parties standing their ground with, most likely, escalating behaviour such as locksmiths being called, doors being kicked in, people being restrained that they are likely to become involved.

    ***

    A point I think that's being missed here is the tenant has the better claim to occupation of the the property. Would anyone like to disabuse me - citing law please - of that position. I'll happily listen and, indeed, take notes! See generally the Residential Tenancies Act 2004.


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    #49
    Kings Inns or bust
    Closed Accounts Posts: 631 ✭✭✭Kings Inns or bust


    foggy_lad wrote: »
    Surely if someone enters without invitation or breaks into your home it is a criminal matter?

    I'd assume so but trespassing itself isn't criminal.

    I would have thought a complete prevention of entry would be, no matter of the person concerned did have an interest in the property but it does seem I'm in a minority there!


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    #50
    Kings Inns or bust
    Closed Accounts Posts: 631 ✭✭✭Kings Inns or bust


    @GM228 I fecking knew I'd read something on point recently and I'll continue to dig out something more on point. Please keep challenging me on it as I'll never forget it again or this:

    DPP v Bartley Unreported CCC 13th June 1997

    As per Carney J

    "it is an indictable offence at Common Law if a public officer wilfully and without reasonable excuse or justification neglects to perform a duty imposed on him either by Common Law or Statute."

    Now there are a load of issues in the instant case which I'm sure will be pointed out with glee, but as a starting point to your query I just couldn't contain myself until morning. I really am living the dream!

    Edit: Turns out this was the case I was looking for all along. A further obiter comment reads.

    “where a credible complaint of felony is made to a policeman he has no discretion under the Common Law not to investigate it and apprehend a named offender. A failure to carry out this duty vigorously constitutes an illegality on the policeman’s part and renders him liable to prosecution.”

    On the compelling a guard, I'm hanging my hat here. It's of dubious use in minor criminal damage/assault I would concede. I reckon there is something in this and the Dytham case but I'll have to have a hunt tomorrow if it's quiet at work. I might even get some useful info for the hospital security one and your powers of arrest thread GM228!

    Thoroughly enjoying this one folks!


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    #51
    cursai
    Registered Users Posts: 2,915 ✭✭✭cursai


    foggy_lad wrote: »
    Surely if someone enters without invitation or breaks into your home it is a criminal matter?

    It depends on the purpose and intent of their entry.


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    #52
    cursai
    Registered Users Posts: 2,915 ✭✭✭cursai


    Kings Inn or Bust. Its not best to argue things when your tired. Also i think you are trying to put 'aspirational/theoretical' law where real world law is, which is great in theory and can inspire people who don't know the law in practice. This is not good practice.


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    #53
    Lazarus2.0
    Registered Users Posts: 2,772 ✭✭✭Lazarus2.0


    Sorry OP, I'm not legally trained but the RTA act is simple enough in essence for a layman to grasp that I've sat in with tenants a couple of times on (P)RTB and defended successfully their right to occupation of a property - one of those was a lockout so I guess that's relevant to your hypothetical scenario. PRTB adjudications are civil though so there's no criminal case to cite but of course they uphold the right to occupation or compensation for wrongful loss thereof.

    In reality as has been mentioned already if there is no breach of the peace the Gardai will be reluctant to get involved. Where the locks were changed in the aforementioned PRTB case the tenant's property was disposed of over the course of a bank holiday weekend while they were away. This was reported to the Gardai as theft but while notes were taken it was never followed up and the officer dealing with was impossible to reach afterwards. While that was disappointing it's understandable. Cops are not trained in contract law and it is not an integral part of their job to arbitrate in such disputes.

    Your quote of Carney "it is an indictable offence at Common Law if a public officer wilfully and without reasonable excuse or justification neglects to perform a duty" carries it's own caveat in the overwhelming majority of lockouts (my emphasis)


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    #54
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    Kings Inns or bust wrote: »
    @GM228 I fecking knew I'd read something on point recently and I'll continue to dig out something more on point. Please keep challenging me on it as I'll never forget it again or this:

    DPP v Bartley Unreported CCC 13th June 1997

    As per Carney J

    "it is an indictable offence at Common Law if a public officer wilfully and without reasonable excuse or justification neglects to perform a duty imposed on him either by Common Law or Statute."

    Now there are a load of issues in the instant case which I'm sure will be pointed out with glee, but as a starting point to your query I just couldn't contain myself until morning. I really am living the dream!

    Edit: Turns out this was the case I was looking for all along. A further obiter comment reads.

    “where a credible complaint of felony is made to a policeman he has no discretion under the Common Law not to investigate it and apprehend a named offender. A failure to carry out this duty vigorously constitutes an illegality on the policeman’s part and renders him liable to prosecution.”

    On the compelling a guard, I'm hanging my hat here. It's of dubious use in minor criminal damage/assault I would concede. I reckon there is something in this and the Dytham case but I'll have to have a hunt tomorrow if it's quiet at work.

    Interesting find Kings Inn, but there is still nothing I believe to compell a Guard to act.

    The Dytham case is a UK case meaning it is not precedent here, merely persuasive. It also applies the principle that the duty of care and duty to act must be as per statute or common law, in other words there must be an omission of a statutory duty before any criminal element can apply, and as I said already there would appear to be no duty in statute, simply a power.

    The principles of duty of care owed by police to the public have since changed due to a more recent case. In Michael v The Chief Constable of South Wales Police [2015] UKSC 2 the Suprene Court has ruled no duty of care is owed to the public until the point the police take responsibility for the member of the public. Does a lack of duty of care reduce the liability of a duty to act I wonder? And when are the Police deemed to take responsibility?

    Statute/common law does not state a duty or obligation, but rather a power so I don't think they even have any "responsibility" until they arrest or detain the person.

    The common law offence mentioned in the Bartley case of failure to investigate and apprehend a named offender for a felony no longer exists. The qualifying criteria to apply the common law offence ceased to exist shortly after that case in 1997 thus making the offence non existant.


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    #55
    Pat Mustard
    Registered Users Posts: 9,554 ✭✭✭Pat Mustard


    GM228 wrote: »
    Would a house/dwelling and it's curtilage satisfy a test to be "land" to qualify under the act I wonder?

    Land would seem to suggest parks, recreational areas etc.
    You have a point. I took a look at the Public Order Act (as amended by the Housing Act 2002) and it doesn't specify that land includes buildings:
    (2) In this part a reference to land includes—
    (a) land provided or maintained by a statutory body primarily for the amenity or recreation of the public or any class of persons (including any park, open space, car park, playing field or other space provided for recreational, community or conservation purposes) or is land within the curtilage of any public building,
    (b) land held by trustees for the benefit of the public or any class of the public, and
    (c) land covered by water.
    Grolschevik wrote: »
    Hmm. As an aside, would that provision seem to preclude the occasionally reported practice of owner management companies withdrawing access (by not issuing the appropriate entry mechanism) to unit owners (or their tenants) with whom the OMC is in dispute?

    I don't see how failure to issue an entry code amounts to coming onto land and bringing an object which affects use or amenity of the land. You will also see GM228's point re definition of land.


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    #56
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    Pat Mustard wrote: »
    You have a point. I took a look at the Public Order Act (as amended by the Housing Act 2002) and it doesn't specify that land includes buildings:




    I don't see how failure to issue an entry code amounts to coming onto land and bringing an object which affects use or amenity of the land. You will also see GM228's point re definition of land.

    That legislation was aimed against tinkers moving onto land and refusing to budge, forcing to owner to go to court and obtain an order for possession. the guards were powerless to move them off private land once they challenged the owners right of possession.


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    #57
    Kings Inns or bust
    Closed Accounts Posts: 631 ✭✭✭Kings Inns or bust


    cursai wrote: »
    Kings Inn or Bust. Its not best to argue things when your tired. Also i think you are trying to put 'aspirational/theoretical' law where real world law is, which is great in theory and can inspire people who don't know the law in practice. This is not good practice.

    The whole point here is to have the argument in the abstract.

    Don't confuse a situation where no one has ever done it, to it can never be done.

    I've seen nothing compelling so far that a LL is anymore in the right than a tenant. I'm coming around to 4ensics view that the guards are not going to order the LL to allow the tenant in, however nor can they order the tenant off the property either, nor can they prevent the tenant gaining entry. I concede this is probably where I originally erred.


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    #58
    Pat Mustard
    Registered Users Posts: 9,554 ✭✭✭Pat Mustard


    4ensic15 wrote: »
    That legislation was aimed against tinkers moving onto land and refusing to budge, forcing to owner to go to court and obtain an order for possession. the guards were powerless to move them off private land once they challenged the owners right of possession.

    That's right.


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    #59
    foggy_lad
    Closed Accounts Posts: 20,373 ✭✭✭✭foggy_lad


    cursai wrote: »
    It depends on the purpose and intent of their entry.
    So if the purpose is to commit an offence or break the law?

    In the case cited by the OP the LL entered and changed the locks to lock out the tenants from their home, this is in breach of the RTA and while it is a civil matter it is also an illegal action.


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    #60
    cursai
    Registered Users Posts: 2,915 ✭✭✭cursai


    foggy_lad wrote: »
    So if the purpose is to commit an offence or break the law?

    In the case cited by the OP the LL entered and changed the locks to lock out the tenants from their home, this is in breach of the RTA and while it is a civil matter it is also an illegal action.

    Burglary for example. http://www.irishstatutebook.ie/eli/2001/act/50/section/12/enacted/en/html

    Also just for kicks. Trespassing is not a criminal offence if someone is on your land for recreational purposes. But is the landlord committing the criminal offence of trespassing.
    http://www.irishstatutebook.ie/eli/1994/act/2/section/13/enacted/en/html


    Havent really thought this one through so it may not apply.


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    #61
    dr.fuzzenstein
    Banned (with Prison Access) Posts: 16,635 ✭✭✭✭dr.fuzzenstein


    So, if I am a tenant and come home to find my LL dangling a set of new keys from his fingers, smiling at me and saying "what are you gonna do, huh?", the gards won't do anything. But it also seems that if I now decide to say "up yours, fatty" to my LL, walk past him, jimmy open a window and get in that way, the gards won't do anything either, so me and my LL will get the usual stifled yawn and "dunno, civil matter, nothing to do with me, gotta go, <<mod deletion >>. And then him and me running to our respective solicitors to consider further action.
    So, in short, if locks changed, give LL two finger salute and break in anyway, <<Mod deletion>>

    Mod
    Derogatory remarks re Gardaí deleted. Pls keep it civil here


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