The Rent (Scotland) Act 1984

There are two offences of harassment that are dealt with in the Rent (Scotland) Act 1984. Each has its own specific characteristics in addition to some elements that are common to both offences.

The first offence of harassment in Rent (Scotland) Act 1984 can be committed by 'any person' and it is necessary to show that the person had the intention of making the occupier leave when s/he committed the act.

Any person is guilty of an offence if they do something 'likely to interfere with the peaceful comfort of the residential occupier or members of their household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence.' [1] These acts must be intended to cause an occupier to leave all or part of any premises or from exercising any right or remedy in respect of the premises.

It is not merely enough to show that certain things were done. 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 her/his occupation of the premises.

The second offence of harassment in the Rent (Scotland) Act 1984 may only be committed by a landlord of any premises or his agents and for this offence it is not necessary to prove a specific intent to cause the occupier to give up the occupation. [2]

A landlord or his/her agent is guilty of an offence if s/he commits acts likely to 'interfere with the peace or comfort of the residential occupier or members of the household, or if s/he persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence'.

It will be enough to show that the accused knew, or had reasonable cause to believe, that her/his conduct was likely to have the required effect; in other words, that the residential occupier would give up the occupation of the whole or any part of the premises, or would refrain from exercising any right or remedy in respect of the premises. Merely showing that the act was committed is not sufficient.

A person shall not be guilty of harassment if they can show that they had reasonable grounds for carrying out the acts that are being complained about, or withholding or withdrawing the services in question. [3]

There are a number of factors that need to be considered in relation to harassment [4] offences.

Threats and intimidation are the most obvious way in which occupiers might be harassed, but acts could include deliberately disturbing occupiers with undue noise, constant late night visits or refusal to replace a tenant's lost key so that s/he is unable to gain access to the premises. [5]

This could include cutting off the gas, oil or electricity supply, or disconnecting the doorbell and preventing the use of a lavatory. It relates to services that are part of the agreement, but not to services that are given voluntarily by the landlord

This could include giving up the common part, a hall or a room in the premises. It would not include giving up the accommodation temporarily whilst works are completed.

This could include being prevented from reporting disrepair to the Environmental Health Office or from going to a rent officer to get a fair rent registered.

Section 22 of the Rent (Scotland) Act 1984 refers to residential occupiers. Residential occupier means 'a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises.' [6] This covers any person having any form of contractual right to occupy and also persons whose occupation is protected by statute, and so means that all owner-occupiers and most tenants and members of their household are residential occupiers for as long as they remain in occupation.

Any tenant whose contract is still in effect will be protected. If the contract has ended or been brought to an end then the protection will not usually end, as lawful eviction almost always requires court proceedings to be taken to remove the tenants. If a court order is required then the tenant only ceases to be a residential occupier once it has been obtained and extract decree issued by the court.

Trespassers (such as squatters) who have no legal right to be in occupation of the premises are not protected by the offence of unlawful eviction as they are not covered by the legislation.

Unlawful (also called illegal) eviction occurs when a residential occupier is unlawfully deprived of his/her occupation of all or part of the relevant premises. [7] This covers any tenant who has been evicted while their contract is still in force or, in the case of those protected by statute, before the relevant procedure has been completed (for example, a court order for possession should have come into force).

Unlawful eviction is not restricted to cases involving violence or threats of violence. It could be committed by changing the locks whilst the tenant is out, or by sending a 'notice to quit' that the sender knows to be invalid.

The offence may be committed by any person; it is not restricted to landlords and their agents. [8] It could, therefore, be committed by one joint-tenant against another, for example an (ex-)partner could illegally evict their (ex-)partner.

In order to decide whether a person has been unlawfully evicted it is necessary to look at their security of tenure and find out if the tenant has received any notice to quit or summons. If a landlord has evicted a tenant after a court order has come into effect then this will not constitute an unlawful eviction and will not be an offence under the Rent (Scotland) Act 1984.

If a person is charged with the offence of unlawful eviction, it is a defence for the accused to show that s/he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises. [9] The burden of proof rests upon the accused if such a defence is used. What is a reasonable belief, and whether the accused had that belief, would depend on the facts of the case. [10]