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Scotland

Harassment of occupiers

There are several options open to occupiers who are victims of harassment, whether they are a private sector tenant, a council tenant or an owner.

This content applies to Scotland

Introduction

In many cases it might be hard to prove that there has been harassment, so occupiers will need to keep a careful note or diary of all incidents and ensure that they have copies of all the relevant communications.

Advisers should be aware that victims might not wish to report incidents to the police or other statutory bodies for fear of further harassment. It is therefore important to check the policy and practice of the body to be contacted before informing them of the problem.

Protection from Harassment Act 1997

The Protection from Harassment Act 1997 states that 'a person must not pursue a course of conduct which amounts to harassment of another'. [1] If someone is harassed they may raise a civil action of harassment. [2]

Remedies under Protection from Harassment Act 1997

Under the Protection from Harassment Act 1997, if harassment is found to have to have taken place the court may:

  • award damages

  • grant interdict or interim interdict

  • grant a non-harassment order ordering the harasser to desist from the behaviour being complained about. [3]

If the non-harassment order is breached then the harasser can be fined and/or jailed. [4] The jail term could be up to five years.

Harassers defence to an action of harassment

The Protection from Harassment Act 1997 gives statutory defences to an action of harassment. The conduct being complained about will not constitute harassment if:

  • it was authorised by a rule of law, for example sheriff's officers carrying out an eviction after a court order has been granted

  • it was pursued for the prevention or detection of crime

  • it was, under the circumstances, reasonable.

Rent (Scotland) Act 1984

The Rent (Scotland) Act 1984 [5] states that 'if any person unlawfully deprives a residential occupier of his premises or any part thereof, or attempts to do so he shall be guilty of an offence...' and 'if any person ...does acts likely to interfere with the peaceful comfort of the residential occupier ... he shall be guilty of an offence'. [6]

This means that anybody, not just the landlord, who unlawfully evicts or harasses a residential occupier, is guilty of an offence. A residential occupier includes all owners and tenants as well as any person having any form of contractual right to occupy, and persons whose occupation is protected by statute, for example, non-entitled spouses and civil partners. [7]

It is, however, more difficult to prove harassment against 'any person' than it is against the landlord: it is necessary to prove that the person intended to make the occupier leave or refrain from exercising one of his/her rights. This means that it is not merely enough to show that certain things were done. In order for a criminal action to be successful, the burden of proof would rest upon the prosecution to show that the acts in question were done with the specific intent of causing the occupier to give up his/her occupation, or to refrain from exercising or enforcing his/her legal rights. For example, if a neighbour persistently plays music in the middle of the night the prosecution would have to prove that this was done to make someone move. It would be a defence if it were shown that the acts were done with some other purpose in mind or that the accused did not realise that the person in the house was a residential occupier.

Reporting incidents to the police

Occupiers should report incidents to the local police and ensure that complaints are lodged. If a criminal offence has been committed, then the police and the procurator fiscal may decide to prosecute. For more information on some of the criminal offences under which the police can prosecute, please see the section on harassment by people other than landlords - definition of criminal offences.

Reporting incidents to the local council

The local council has duties to take reasonable steps to ensure that accommodation does not cease to be available for those who have become threatened with homelessness. [8] In severe cases of harassment, it may be possible to argue that it is no longer reasonable for the victim to remain in the accommodation, and that they are therefore homeless or threatened with homelessness. However, this course of action should be approached with care.

In circumstances where there is noise nuisance or other nuisance, environmental health officers may be able to take action. For more information, please see the section on environmental health.

In addition, advisers should note that tenants of local authority housing suffering from harassment from neighbours should always be encouraged to report matters to the local housing office. It is possible that the acts being complained about are a breach of the neighbour's tenancy agreement, and that the involvement of the local housing officer (who may offer a mediation service) may resolve the dispute.

Taking action in the civil courts

If someone is harassed they may raise a civil action of harassment.

In some cases, a residential occupier may be able to take civil action for damages. S/he would need to prove that they suffered loss or harm in some way. Such loss could be actual, such as damage to property, physical harm or emotional harm. Residential occupiers may also be able to get an interdict against the perpetrator preventing him/her from continuing to carry out the act being complained about. For information on the procedure for getting an interdict, please see the section on harassment by a landlord - civil action.

Last updated: 29 December 2014

Footnotes

  • [1]

    s.8(1) Protection from Harassment Act 1997

  • [2]

    s.8(2) Protection from Harassment Act 1997

  • [3]

    s.8(5) Protection from Harassment Act 1997

  • [4]

    s.9 Protection from Harassment Act 1997

  • [5]

    as supplemented and amended by the Housing (Scotland) Act 1988

  • [6]

    s.22(1) and s.22(2) Rent (Scotland) Act 1984

  • [7]

    s.22(5) Rent (Scotland) Act 1984

  • [8]

    s.32 Housing (Scotland) Act 1987 as amended by s.3(4) Housing (Scotland) Act 2001