290 Property Law

which is a sure recipe for violence . . . The policy of the law is to discourage self-help when confrontation and breach of the peace are likely to follow. If a tenant, who is in breach of covenant, will not quit but persists in carrying on his business despite the landlord’s right of re-entry, the proper course for a responsible landlord is to invoke the due process of the law and seek an order for possession from the court. But a landlord can hardly be expected to do so if, in terms of his legal rights, he will be severely prejudiced thereby. Nor can he be expected to respect, or even understand, a law which tells him that he should not resort to violence or force in such circumstances but tells him at the same time that, if he does forcibly re-enter, his position in law will be better than if he invokes the court’s process.

In that case, Nicholls LJ’s minority view was subsequently upheld by the House of Lords, reversing the Court of Appeal decision. However, the Court of Appeal has recently confirmed that essentially the same inconsistency still exists in the case of mortgagees seeking possession of dwelling-houses (see further Ropaigealach v. Barclays Bank plc [1999] 3 WLR 17, CA, and for an analysis of the law relating to retaking of goods without a court order, where the same problems can arise, see the Law Reform Committee’s Eighteenth Report on Conversion and Detinue (Cmnd 4774, 1971) paragraphs 116–26, ‘Recaption of Chattels’).

7.4.3.2. Restrictions and deterrents

There are express statutory provisions which prohibit the use of self-help in some circumstances. Where they apply, they restrict the circumstances in which residential occupiers can be evicted without a court order. In particular, if you are a landlord of premises let as a dwelling, you cannot enforce any right to forfeit the lease except by judicial process if any person is lawfully residing there because of section 2 of the Protection from Eviction Act 1977. Also, if the premises were ‘let’ as a dwelling (‘let’ here, but not in section 2, covering the grant of a licence as well as a tenancy) and the tenancy or licence has now expired, you cannot recover possession from the former tenant or licensee except by judicial process (section 3 of the 1977 Act). However, section 3 does not apply to all residential tenancies and licences: if the tenancy or licence is ‘excluded’ (as to which see section 3A), former tenants and licensees can still be evicted by physical re-entry.

In all other cases, if you are entitled to possession, you are entitled to take it for yourself by physical action. However, there are reasons why you might prefer not to do so, but to rely on the court instead. The first is that the consequences of getting it wrong can be severe. If it turns out that you were not after all entitled to possession at that time, or were not entitled to take it for yourself without judicial process, you will be liable at common law for damages for trespass. In addition, in the case of land, if the person you evicted or tried to evict was a ‘residential occupier’, you will be committing both the statutory tort of unlawful eviction (sections 27–32 of the Housing Act 1988) and the criminal offence of unlawful eviction (section 1 of the Protection from Eviction Act 1977). For the purposes of both the tort and the crime,