Archive for the 'Unlawful eviction and harassment' Category

Just another brick in the (Sheffield CC v) Wall

Published by J on 03/08/2010 in FLW case note, Housing law - All, Possession, Succession, Uncategorized, Unlawful eviction and harassment and secure-tenancy. 0 Comments Tags: , .

Sheffield CC v Wall (by her personal representatives), Wall, Ingham, Butler [2010] EWCA Civ 922, is, on any view, an unusual case. The Court of Appeal didn’t, however, help matters.

Imagine, if you will, that, in 1967, Mr Steven Wall was placed with Mrs June Wall, who acted as his foster parent, by Sheffield CC. Whilst Steven was never adopted, he was clearly treated as the son of Mrs Wall and there was no-one else that could be said to have fulfilled that role.

In October 1986, Sheffield CC granted Mrs Wall a secure tenancy of a two-bed house, to be occupied by her and her “son”, Steven. He duly qualified as a solicitor and, after a short spell living and working in London, he returned to Sheffield in June 2002, to live with his mother. Sadly, 51 weeks after moving back home, his mother died of cancer. During those 51 weeks, Steven had cared for his mother. The council served NTQ and issued possession proceedings, contending that there was no-one entitled to succeed to the tenancy. Steven resisted the proceedings, arguing that he had succeeded.

In the county court, two issues arose. Firstly, was Steven a “member of the family” for the purposes of ss.87 and 113, Housing Act 1985. Perhaps surprisingly, foster children are not expressly within the scope of these sections. However, the Recorder dealt with this by finding that Sheffield were now estopped from arguing that Mr Wall was not a member of the family.

The second issue was more common – had Mr Wall resided with his mother for the period of 12 months ending with her death? The Recorder found against Mr Wall on this point.

Mr Wall successfully appealed to the Court of Appeal ([2006] EWCA Civ 495), which didn’t deal with the first issue, but criticised the approach taken by the Recorder to the second issue. The case was remitted for re-hearing.

However, Mr Wall hadn’t sought a stay of execution pending the appeal and, in early 2005 (prior to the appeal), the possession order was executed. The property was then re-let under a new secure tenancy to Mr & Mrs Ingham.

At the restored hearing, Sheffield accepted that Mr Wall had resided at the property for the relevant period. Their claim for possession was dismissed. That, however, was of very limited use to Mr Wall, since Mr & Mrs Ingham were now living at the property. He joined them and sought an order for possession as against them. That claim was also dismissed.

And, so, the mess ended up in the Court of Appeal. Again.

The first matter to consider was the potential succession rights of Mr Wall, or, more shortly, was he a “member of the family” for the purposes of ss.87 and 113, 1985 Act?

The Court was satisfied that, under the Rent Acts, he would have been. Brock v Wollams [1949] 2 KB 388 and, more recently, Fitzpatrick v Stirling HA Ltd [2001] 1 AC 27 were clear authority for the generous approach to be taken when construing that phrase. Context was, however, everything. In the context of the 1985 Act – unlike the Rent Acts – the statute itself defined the scope of “member of the family”. That definition was in s.113, 185 Act and, as already noted, does not refer to foster children. Section 113 was a complete code and Mr Wall did not come within it.

His only recourse was to rely on Art. 8, Sch. 1, Human Rights Act 1998. His Art. 8 rights were clearly “engaged”, but Parliament was clearly entitled to come to the view that only certain persons should be entitled to succeed, such that any violation of Art. 8(1) was justified under Art. 8(2).

So, the appeal failed at this stage. Mr Wall was not – and had never been – entitled to succeed to the tenancy. You may think that this is a rather harsh result, rather unpersuasively reasoned and one that – if right – really should have been dealt with in the 2006 appeal. That, however, is entirely a matter for you.

The court could, and perhaps, should, have stopped there. However, it went on to consider – without deciding – what would have happened if Mr Wall has succeeded.

Firstly, it was clear that the tenancy of his mother would have vested in him immediately. Secondly, the previously decided cases (Brent v Botu [2001] HLR 14; Hillgate House Ltd v Expert Clothing Services [1987] 1 EGLR 65) did not purport to set down any general rule, the answer had to come from the 1985 Act itself; in that regard, when Mr & Mrs Ingram went into possession, it appears that Mr Wall would have ceased to satisfy the tenant condition (s.81, 1985 Act), such that he lost his security of tenure and would be liable to eviction at the suit of Mr & Mrs Ingram, after service of an NTQ. A suggestion to the contrary in Osei-Bonsu v Wandsworth LBC [1999] 1 WLR 1011 was per incuriam.

However, the point did not arise in the present case and was not decided. A further point on costs was also dealt with, but need not concern us here.

Illegal eviction and the police

Published by NL on 11/07/2010 in FLW case note, Housing law - All and Unlawful eviction and harassment. 4 Comments Tags: , , , .

Naughton v Whittle and Chief Constable of Greater Manchester Police. Manchester County Court 30/11/2009 (Legal Action July 2010)

The tendency of the police to be utterly useless in cases of unlawful eviction has been a recurrent motif on Nearly Legal. They either do nothing, saying that it is a civil matter, or on occasion remove keys from the tenant. In this case, reported in July’s Legal Action Housing Updates, for which many thanks, the police did take further steps. Unfortunately, they took steps in entirely the wrong direction and ended up paying for it.

Mr Naughton had been occupying a property for some 15 months. In March 2006, Ms Whittle, apparently the owner, orally told him to leave in about 3 weeks time. Two weeks later, Ms Whittle’s brother told Mr N he would be put out of the property if he refused to leave. On the date he had been told to leave, Ms Whittle accosted Mr N’s girlfriend and grabbed the keys to the property, injuring the girlfriend’s hand. Mr N returned home to find the locks being changed.

The police were called and, helpfully, threatened Mr N with arrest for breach of the peace. The police then physically removed Mr N from the property and he was locked out. He did get to return twice on later dates to collect belongings.

Mr N brought claims against Ms W and the Chief Constable, the latter for trespass to person.

The Chief Constable settled for £2,500. Ms W defended on the basis that it wasn’t a tenancy, there being no rent paid, or that occupation had been temporary pending negotiations for a substantive tenancy agreement. The Court found there was a tenancy and a weekly rent.

Damages
£7,700 – being £275 per day for the 28 days deprived of occupation before finding new accommodation
£1,500 aggravated damages.
No set off of the settlement by the police against damages awarded against Ms W – ‘each tortfeasor must pay appropriate damages for the wrong done’.

To any police officers who may happen to read this, it is not difficult. Unlawful eviction is an indictable criminal offence – Protection from Eviction Act 1977 s.1.

If someone has belongings in a property and has a key for the property, it is an odds on bet that they have a right to reside there and fall under the Protection from Eviction Act (not certain, granted, but more likely than not). So, if the landlord isn’t armed with the required court orders, it is not a good idea to a) assist the landlord, b) take the keys from the occupant, c) physically remove the occupant from the property or d) arrest the occupant because they won’t leave.

In fact, if the occupant has a tenancy agreement and the landlord doesn’t have court orders, you may want to consider actually arresting the landlord…

A bumper pack of unlawful eviction – updates from Legal Action

Published by NL on 15/06/2010 in Assured Shorthold tenancy, FLW case note, Housing law - All and Unlawful eviction and harassment. 3 Comments Tags: , , , .

In the second post of County Court cases you will already have read in June’s Legal Action Housing updates, we turn to unlawful eviction and harassment. And it appears to have been a rich few months in this regard, with no fewer than five cases to note.

Fakhari v Newman, Woolwich County Court 07/01/2010
Mr F granted Mr N a one year AST in May 2008. Monthly rent of £985 and one months rent taken as deposit. The deposit was not protected. The boiler in the property had problems from the start and broke down completely in December 2008. Mr N was without heating and hot water until June 2009, when hot water, but not heating, was restored. There were draughty, defective windows that leaked. From December 2008, Mr F and his sister telephoned and texted Mr N continually, telling him to leave. They also tried to get him to sign a new tenancy agreement for an extra £500 per month. Mr N was threatened and told it was ‘not safe’ for him to remain. They attended without appointment. Mr F’s sister told the police that Mr N had tried to blow up the property. Mr F claimed possession. Mr N counterclaimed.

On the counterclaim the following awards were made:
£2,995 under s.214 Housing Act 2004 – the failure to protect deposit. Deposit to be protected within 28 days.
£9,250 for disrepair (25% of rent May 2008 to December 2008; 75% of rent December 2008 and June 2009; 43% of rent from June 2009 onwards)
£2,000 for harassment
£2,000 in exemplary damages

Walsh v Shuangyan. Manchester County Court 14/01/2010
Ms S granted Mr W the tenancy of a room in an HMO in June 2009. Rent was £298 per month. There were six other tenants of rooms in the same house. In July 2009, the local authority served notices on Ms S as the HMO was unlicenced under Housing Act 2004 and requiring various remedial works to the electrical installation and the boiler. ON 8 August, Ms S disconnected the boiler, ending heating and hot water. Four occupants moved out over the next few days. On 31 August the electricity supply was disconnected by Ms S. After a further two tenants moved out, Mr W was the sole occupant. Ms S and her father then embarked on a campaign of harassment and threats against Mr W. He was assaulted and his door kicked. On one occasion, Mr W had to barricade himself in his room for a night as MS S and her father remained in the house to try to get him to leave. On 16 September 2009, he returned home to find the locks had been changed and some of his possessions put into bin bags outside. He could not get at the majority of his belongings still in the room.

The local authority’s tenancy relations officer contacted Ms S and told her that her actions were unlawful. She refused to readmit Mr W. Mr W obtained an injunction requiring readmission. Ms S failed to comply and an order was made committing her to prison for 28 days.

Mr W spent 30 days sofa surfing, missed work and got a painful back as a result.

The DJ awarded:
£2,000 for pre-eviction harassment
£6,000 for the eviction and consequences (a daily rate of £200)
Aggravated damages of £4,000
Exemplary damages of £1,500 – representing the costs Ms S might have incurred for legal advice and lawful eviction proceedings.
Special damages of £5,750 – being the value of the items lost from Mr W’s room and loss of income
Interest of £204
Costs at the indemnity rate

Comment
Not sure about the calculation of exemplary damages there. The measure is, in my view, the potential (not actual) gain made by the tortfeasor as a result of the tortious act. While saving legal and court expenses is one way of looking at this, the question might also be what was the value to Ms S of the property with vacant possession? In the absence of further facts, it is hard to tell, but Ms S determination suggests a further value/gain beyond saving possession proceeding costs.

Anslow v Hayes, Manchester County Court 15/10/2009
Mr H granted Mr A a tenancy of a room in an HMO. Rent of £350. Mr A moved in on 1 September 2007. Over the next few months, Mr A accrued rent arrears at a modest level. Mr H threatened to evict him. On 17 December 2007, Mr A returned to find he could not access the property. He called Mr H, who refused to let him in. Mr H then called the police to tell them there was someone acting suspiciously outside the house.

Mr A went to the local authority tenancy relations officer and to a solicitor, who both called Mr H. Mr H refused to readmit Mr A. Mr H apparently agreed Mr A could collect his belongings, but hen packed the belongings without Mr A’s permission. Mr A was not allowed in and his girlfriend had to retrieve what she could recognise as belonging to Mr A. Some items had been removed or disposed of. Mr A spent 73 days living in very cramped conditions with his girlfriend before being able to find alternative accommodation. Mr A claimed. Mr H filed a defence but failed to turn up at trial.

The Recorder awarded:
£7,000 General damages for the 73 day period deprived of occupation of his home
£2,000 aggravated damages, given that Mr H had been warned of the illegality of his actions
£1,000 exemplary damages on the basis of estimated costs of legal advice and lawful possession proceedings
Interest
Costs

Comment
The exemplary calculation probably makes more sense here, where the motive for the unlawful eviction was arrears and it is likely that the result would have been a re-let at a similar rate. In those circumstances, costs of advice and lawful proceedings is a cunning way of giving a basis for ‘gain’ for exemplary purposes.

Schuchard v Fu, Brentford County Court 25/02/2010
Mr S had an AST of one room in an HMO. The landlady wanted possession of the property for renovation and write a number of letters. No s.21 Notice was served or proceedings brought. In July 2009, the landlady sent a letter ‘requiring’ Mr S to leave the next day due to rent arrears. The following day, she attended with locksmiths and changed the locks. She refused to give Mr F a key. Most of Mr F’s possession were inaccessible in his room. The day after the change of locks the local authority tenancy relations officer called the landlady and asked her to readmit Mr F. She refused unless the rent arrears were cleared. Mr F instructed solicitors who wrote to the landlady, who continued to refuse to readmit Mr F.

Mr F was street homeless for 120 days. The local authority refused to provide accommodation during this time. The LA then provided 77 days temporary accommodation while considering a National Assistance Act 1948 duty, which was then discharged. A further 35 days were spent sleeping on a friend’s floor.

On Mr F’s claim, the District Judge awarded:
£200 per day general and aggravated damages for the 120 days street homeless – £24,000
£2,000 for the 77 days in LA temporary accommodation
£125 per day general and aggravated damages for the 35 days sleeping on a friend’s floor – £4,375
£1,750 exemplary damages as ‘the eviction was partly so that the landlord could do up the property with a cynical disregard for Mr S’s rights’.

Comment
Again, exemplary damages are odd here (can you see a hobby horse on the horizon). What is the measure of the tortfeasor’s gain or intended gain?

Keddy v Hughes, Sheffield County Court 12/03/2010
Mr K lived in the property from 2005 with his mother, then became the tenant in June 2007. Mr H state that Mr K had agreed to move out in October 2008. If he did so, Mr K changed his mind and decided not to move out. Mr H had arranged new tenants.

Mr H attended the property and assaulted Mr K twice. He returned later with three other men. Mr K was assaulted and physically ejected from the property. He returned to the property later the same day. A week or several later Mr K returned home to find Mr H inside packing up furniture. Most of Mr K’s possessions had been put in bin liners, some damaged. Mr K decided to leave and not return. He stayed in a B&B for 3 or 4 weeks before being accommodated by the Local Authority under Housing Act 1996 Part VII.

On Mr K’s claim, the Recorder awarded:
£165 per night for 28 days after the unlawful eviction – £4,620
£1,500 for harassment and trespass to person and property
£1,000 in aggravated damages
£2,000 in exemplary damages on the basis that ‘the ejection from the property had been public upsetting and humiliating’. Mr H had been warned by the local authority against unlawfully evicting Mr K. Mr K had acknowledged he was aware of HA 1988 requirements. Rent sought for new tenants exceeded that paid by Mr K.
£750 special damages

Comment
On exemplary damages once more – from the report the justification for exemplary damages sounds like an unholy amalgam of the proper basis for aggravated damages (the public humiliation, the warning buy the LA) and exemplary (deliberate unlawful act in pursuit of gain, increase in rent as return).

I’ve said this before and failed to do anything about it, but I really do feel a post on aggravated and exemplary damages coming on. When I have time. Not for a while.

Re-entry and re-opening: updates from Legal Action

Published by NL on 14/06/2010 in ASB, FLW case note, Housing law - All, Possession, Unlawful eviction and harassment and secure-tenancy. 0 Comments Tags: , .

June’s Legal Action housing updates have a bumper collection of interesting county court cases, as you’ll already know. For our archives, this is the first of a couple of posts. This one deals with cases on post-eviction re-entry and on re-opening possession proceedings, including an LB Croydon case that very nearly merited a naughty step post of its own.

Croydon LBC v Mensah-Bonsu, Croydon County Court 15/03/2010
Ms Mensah-Bonsu was Croydon’s secure tenant. In August 2009 a suspended possession order was made on terms of rent plaus £21.60 per month. Ms M-B complied until December 2009, when she missed a payment due to ill health. She contacted Croydon offering to pay double in february 2010. Croydon rejected the offer on 19 January, then sent several contradictory demands for payment. Ms M-B made the January payment. On 1 February Croydon applied for a warrant. On 5 February Ms M-B made the double payment. A final letter from Croydon said she was required to pay £177.96 immediately and if she did so, the eviction would be cancelled. Ms M-B borrowed and paid over £178. The eviction went ahead. Ms M-B applied for re-instatement.

In its evidence, Croydon completely ignored the final letter. The witness, an income officer, failed to turn up to the hearing. Th eapplication was allowed. The DJ was deeply unimpressed by the failure of the witness to turn up and even more so with Croydon’s failure in any of its letters to inform Ms M-B that she could apply to stay or suspend the warrant, an ommission the judge described as ‘very worrying’.

I think we can go a little further than that and describe Croydon’s behaviour as frankly appalling and, in view of the promise in that last letter, with which Ms M-B had complied, pursuing the eviction as tantamount to an abuse of process. Good work by Merton Law Centre there.

Manchester City Council v Trayers, Manchester County Court 02/02/2010
This was an application by Manchester to re-open possession proceedings after judgment. Manchester had brought proceedings against Ms Trayers, a secure tenant, on the grounds of rent arrears and anti-social behaviour. Ms T had received a caution for possession of drugs at a pub in the area. The allegations against Ms T were reduced before hearing in July 2009, when live evidence was heard. Judgment was then reserved until 3 September 2009. The Recorder’s judgment handed down contained a direction that the parties propose agreed terms for a suspended possession order.

Manchester applied to re-open proceedings on the basis that one of Ms T’s sons had been found guilty of two criminal offences after the hearing of the claim and that this constituted a pattern of behaviour which had not got better, but worsened. For this reason Ms T would enjoy an advantage due to the delay in the judgment.

The Recorder dismissed the application. Robinson v Fernsby [2003] EWCA Civ 1820 meant that such applications should only be made in exceptional circumstances. Although there had been some delay, the judgment was final, albeit that terms of the SPO and costs orders were to be agreed. The conviction of one son after hearing but before judgment was not an exceptional circumstance. It was open to Manchester to make a further application to enforce the order, but not to re-open proceedings.

I wonder about this. Could Manchester seek to enforce the terms of an SPO based on a breach prior to the final order and therefore the terms being made? If not, one could see Manchester’s point in seeking to re-open proceedings. However, given the delay and further evidential requirements in doing so, perhaps enforcement would be a better and quicker bet.

Unlawful Eviction, exemplary damages and why people don’t like estate agents

Published by NL on 28/02/2010 in FLW case note, Housing law - All, Possession and Unlawful eviction and harassment. 0 Comments Tags: , , , .

Islam v Yap and Others. Claim No: TLQ/09/1130. High Court, 20 November 2009.

This was a claim for unlawful eviction and a tale worthy of a play by Ben Jonson. There were no less than 5 defendants, and such superfluity necessitates an opening description of the nature and the character of the dramatis personae:

Mrs Islam – a homeless applicant housed by LB Redbridge on a non-secure tenancy and being the Claimant.
Mr Yap – a freeholder of the property, who granted a lease to Finebridge Lettings but appeared somewhat confused about the extent of his title and wished most ardently to sell the property to realise his investment.
LB Redbridge – a local authority under a statutory duty to secure accommodation for Mrs Islam, and which had taken a sub-lease of the property from Finebridge Lettings and and the very same time entered into an agreement whereby Finebridge would manage the letting to Mrs Islam on behalf of itself, thereby avoiding any practical engagement.
Finebridge Consultants Limited – a business, owned by Mr Kamran Nasrim, that does not concern itself with private lettings, deriving its income of £10 million from management fees paid by LB Redbridge. Despite Mr Nasrim having a 49% interest in Reptons, and Finebridge holding 2% interest in Reptons, the Court was satisfied that Finebridge has no knowledge of the unfortunate events of 26 March 2007.
Reptons Limited – being an erstwhile estate agency, now deceased, that shared offices with Finebridge Consultants Limited and which, despite having no sole agency and no instructions, sought most actively through the person of Mr Clark to effect the sale of the property owned by Mr Yap and occupied by Mrs Islam to another party, with vacant possession.
Mr Clark of Reptons – being an agent paid on commission and determined to advance himself. A man variously characterised as being very firm, very confident, bullying and threatening. A man who in hot pursuit of his commission would not fail to stoop to entering a property and refusing to leave until the tenant did, after arranging for the locks to be changed later that date.

So, Mr Yap wished to sell. He had, it seems, confused himself as to whose tenant Mrs Islam actually was, as there were a number of emails between them that seemed to show he thought of himself as her landlord. He wasn’t, of course, having let to Finebridge, who let to LB Redbridge, who let to Mrs Islam. A notice to quit had been served on Mrs Islam by LB Redbridge (actually by Finebridge on their behalf) but no further steps taken. Mrs Islam was actively seeking suitable rehousing for herself and her 11 year old and seven month old children, but without any promise of accommodation having been made. It appears that Mr Yap had convinced himself that Mrs Islam would shortly be leaving the property.

Mr Clark entirely off his own bat found a buyer for the property who wanted possession by 25 March 2007. Mr Clark told Mr Yap of this and Mr Yap agreed to the price offered and gave Mr Clark details of his solicitors.

Mrs Islam did not – could not – leave the property. Mr Clark, worried that his commission was about to vanish, called Mr Yap and said that Mrs Islam was dragging her feet and that he was going to change the locks. Mr Yap responded that this was illegal but that if Mr Clark was to do so, he ‘was not going to pay the cost’, which the Court felt fell so far short of telling Mr Clark to do no such thing as to be an acquiesence, a ‘pregnant acceptance’ that Mr Clark was going to go ahead.

Mr Clark called Mrs Islam, told her that she was a trespasser, he was going to brook no nonsense from her and that she should forget about the police. If she wasn’t out by 26 March 2007, he would come to the property and stay there until she left and that the locks would be changed. Mr Clark invoked the names of Mr Yap and, according to Mrs Islam, Finebridge as authority for what he was saying.

As set out in the dramatis personae, the Court found that there was no involvement by Finebridge, despite the business entanglements. This and subsequent actions were those of Mr Clark, Reptons and with the ‘pregnant acceptance’ of Mr Yap.

On 26 March 2007, Mr Clark went into the property and stayed there – he said for 30 mins, the Court found for a few hours – insisting that Mrs Islam had to leave. Two other people were with him. Mrs Islam had to wait for her eldest child to return from school. At that point she was evicted and the locks were changed. Mrs Islam’s main possessions were still in the house.

Unsurprisingly, the Court found against Mr Clark, Reptons Ltd (deceased) and Mr Yap. Mr Yap made ‘rather unattractive’ submissions that he had better title to the premises than Mrs Islam. In view of Mr Yap’s knowledge of the lease to Finebridge, sub lease to LB Redbridge and their consent to Mrs Islam’s continuing occupation, this was nonsense. Mr Yap had parted with exclusive occupation and had no say in the continuation of Mrs Islam’s occupation.

Damages:

General damages from the date of the eviction to the court hearing at £36 per day, being the rent chargeable for this time.

Aggravated damages against Mr Clark of £3,000.

Exemplary damages – against Mr Yap who let things go ahead and did not intervene. He realised an economic benefit from the eviction. It appears that he bought the property for £130,000 and sold at £164,000. There would be agent’s fees and the like (presumably paid to Mr Clark!) and other costs which would eat up a lot of that (this based on no evidence at all as far as I can see). An award of £5,000 would serve to show that tenants must be protected against this sort of conduct done with an eye to investment advantage.

Special damages – Mrs Islam should have taken portable items such as jewellery and a computer with her, but she was alone with two young children as against Mr Clark and his associates. It was entirely reasonable of her not to return having fled to student accommodation. There was an agreed figure for damages, but the proper figure was £2,000, not £3,000.

Comment
A very unpleasant case, and Mr Clark is clearly a real charmer. However, I’m slightly concerned at the treatment of exemplary damages here. The Court is quite right to consider the advantage sought by the tortfeasor, but this should properly be the measure of damages. Granted there was a lack of evidence before the Court on, for instance, the market value with vacant possession and with a sitting tenant, which would more properly be the measure of damages as the gain Mr Yap sought to realise. This lack is disappointing as, if the evidence was provided and the point argued, it is likely that the award of exemplary damages would have been higher. Even if there has been some evidence as to the probable level of fees and costs incurred by Mr Yap, the measure of the profit sought would be clear – and it would surely have been higher than £5,000.

Further, what the actual gain realised by Mr Yap was is not necessarily key – it is the gain he sought to make through his actions (or here lack of them). There is no requirement that a gain is actually realised for exemplary damages to be awarded, simply that a gain was proveably sought. Whether the tortfeasor’s plans were frustrated does not affect either the intention or the punitive point of exemplary damages.

I rather think that unlawful eviction cases are often brought without due consideration and evidence of the gain sought by the landlord, and without argument on the issue of the proper measure of exemplary damages. I suspect that awards that are rather higher than those now generally awarded could be obtained. But I feel a detailed post on this topic coming on…

Farming today

Published by J on 01/02/2010 in Uncategorized and Unlawful eviction and harassment. 2 Comments Tags: .

Kakas v Farmer, Court of Appeal, 29.1.10 (extempore judgment, only available as a lawtel note)

Section 27, 1988 Act creates a statutory tort of attempting or actually depriving a residential occupier of his occupation of some or all of the premises. Importantly (and subject to a very minor exception in s.27(7)(b), 1988 Act), the tort only bites if the occupier is not re-admitted.

By s.27(8), 1988 Act, it is a defence if the landlord can show that he believed and had reasonable grounds for believing that inter alia, the tenant had ceased to reside at the property. In addition, by s.27(7), 1988 Act the court has a discretion to reduce damages if inter alia, the conduct of the tenant prior to the eviction made it reasonable to do so.

K was the assured tenant of F. Whilst K was temporarily absent from the property, F entered, took up occupation and changed the locks. K was able to gain re-entry but, shortly after doing so, was sentenced to a term of imprisonment. Whilst he was detained, F again re-entered the property and sold it with vacant possession.

K issued proceedings for unlawful eviction, relying on s.27, Housing Act 1988. F argued that he believed the property had been abandoned and that K had surrendered his tenancy. He also counterclaimed for diminution of the value of the property and for rent arrears.

The trial judge held that K had not abandoned the premises but that F had consciously decided to take a calculated risk in acting as he did. In particular, he found that F had no reasonable basis for believing that K was not residing at the property. Costs were also awarded against F on the indemnity basis.

F appealed to the Court of Appeal. He repeated his argument that he reasonably believed K to have abandoned the property and / or surrendered his tenancy. In addition, he raised a new point not taken below, to the effect that the judge should have reduced the damages under s.27(7).

The Court of Appeal dismissed the appeal. The judge had made findings of fact which were supported by the evidence. There was no act by K which could amount to a surrender of the tenancy. The defence under s.27(8) was for F to prove and he had failed – on the facts – to do so before the trial judge.

The argument under s.27(7) had not been pleaded or raised at trial and the judge could not have been said to be in error in not dealing with it.

Finally, there was ample justification for the award of costs on the indemnity basis.

Frustratingly, the note doesn’t say what the damages were. Mr Bogle / Mr Fox (counsel for F and K respectively) or Selvat & Co / Ronald Fletcher & Co (solicitors for F and K respectively) – any update?

Catching up with LAG

Published by NL on 16/01/2010 in Assured Shorthold tenancy, Disrepair, FLW case note, Housing law - All, Introductory and Demoted tenancies, Unlawful eviction and harassment and assured-tenancy. 6 Comments Tags: , .

The January 2010 Housing updates in Legal Action have some County Court case reports that hadn’t reached us. You will naturally have already read them in Legal Action, but for our archives…

Tenancy Deposits
O’Brien v Hill Barnet County Court 22/09/2009
Mr O’Brien granted Mr Hill a 12 month AST on 9 June 2008. He served a s.21 Notice on 12 June 2008. On 2 July 2008, the landlord received the payment of the deposit from Barnet Council, which had agreed to pay the deposit on Mr Hill’s behalf, and the deposit was protected on 7 July 2008. Some time later Mr O’Brien brought accelerated possession proceedings relying on the June 2008 s.21. Mr Hill defended on the basis that the s.21 was invalid as at the time it was served there had not been compliance with s.213 Housing Act 2004.

DJ Silverman ordered that the claim be struck out on the basis that the s.21 was invalid, but gave the Claimant permission to restore the claim if he thought that the order should not have been made (!). Unsurprisingly, Mr O’Brien did apply to restore the claim and this time DJ Silverman made a possession order, accepting that no deposit had been received at the time of service of the s.21 and that therefore s.213 did not apply.

This surely has to be the right decision and the first strike out order is frankly a bit odd. It appears DJ Silverman wasn’t entirely happy with it at the time either.

Harassment and Unlawful Eviction Quantum
Odera v Iqbal Luton County Court 3 September 2009
The Claimant had an AST of a room in a three bedroom house with shared facilities, where she lived with her 11 year old daughter. The landlord allegedly harassed her throughout the tenancy by entering without warning. In January 2008, he gave her a defective Notice. The Claimant began looking for alternative accommodation. On 17 February, she backed her belongings and told the Defendant landlord she was on her way to pick up keys for new accommodation. The new landlord refused to give her the keys unless she handed over the full deposit. She returned to the premises. Later that evening, the Defendant and another man removed her belongings and put them outside the property. The Defendant dragged the Claimant and her daughter out of the bedroom, down the stairs and out the property. The police were called but accepted the Defendants word that the Claimant had no right to remain. The police asked the Defendant to store the Claimant’s belongings until the next day (Top work there, Luton constabulary). The Claimant stayed in emergency accommodation, then for 3 days with her sister in Watford. When she returned to pick up her belongings, she found them discarded in the back garden, soaked and rain damaged.

At trial, the Claimant’s evidence was accepted. Damages:
£500 for breach of covenant of quiet enjoyment and trespass for the two weeks prior to the eviction.
£1000 for the assault and method of eviction.
£1500 aggravated damages, particularly in view of Claimant’s daughter witnessing the assault and being assaulted.
£1000 exemplary damages as the landlord sought to increase his income by letting the property as a whole.
An inquiry into special damages – later settled at £750.

Cashmere v Walsh, Downing and Veale Central London County Court 27 October 2009
The Claimant had an assured tenancy of a flat in Docklands from 1990. In 2000, Downing bought the flat as bare trustee for Walsh. Veale was Downing’s mother and a business associate of Walsh.

Between 2000 and 2003 there was minor disrepair at the flat (defective light fitting, non functioning storage heater). There was further disrepair from 2003 onwards – a further non-functioning heater, broken handle on the toilet cistern following a refurbishment of the bathroom, and poor floor covering in the bathroom. The Claimant began spending more time at his girlfriend’s home. Downing and Veal promised to carry out repairs. In December 2007 they asked the Claimant to move out for the duration of works. The Claimant moved out and allowed the landlord to clear the flat of his belongings which were piled in the corridor. The works were completed in a week, including a new front door and lock. When the Claimant asked for a copy of the key he was told he could not have it because there were rent arrears. After being turned away by the Defendants on several occasions, the Claimant engaged solicitors. Pre-action letters received a response from Walsh saying that he was now the owner of the flat and had a new tenant in. On this basis an application for re-entry was not made. The annual rent was £10,920

On a claim for damages, the Court acknowledged that there were ‘historic’ rent arrears of about £7,000 and that the Claimant had caused noise nuisance to his neighbours, but neither of these were the reason for the eviction. The Defendants had chased housing benefit, it was not until the locks had been changed that they demanded payment from the Claimant personally. The true reason for the eviction was the desire to sell the flat, which was achieved after the eviction. Damages under s.27 and s.28 Housing Act 1988 were appropriate, without deduction under s.27(7)(a). Damages on this head £47,000 against Walsh.
Disrepair – £9,200 (4% of rent for the first 3 years; 15% of rent for the next 5 years).
£8,000 against Downing and Veal for their part in the deception and the refusal to hand over keys, which amounted to trespass. The Claimant had taken over 18 months to find suitable alternative accommodation.
£500 for failure to return a deposit.
£6,515 against Walsh and Downing for the loss of the Claimant’s belongings, which were never recovered.
Aggravated damages of £10,000 against all three Defendants. The Claimant had been duped into handing over the keys, even assisting in the removal of his belongings. His belongings had been dumped and the Defendants never told the Claimant where they were. The Defendants has lied about the whereabouts of the belongings to the Claimant’s solicitors, had denied the eviction and denied control over the flat at the relevant time. They had also lied about a new tenant being in place.

Introductory Tenancies
Plymouth City Council v Hill Exeter County Court, 6 November 2009
Mr & Mrs Hill were introductory tenants. Following a valid s.128 Housing Act 1996 notice on grounds of rent arrears, a possession order was made. Plymouth applied for a warrant and a bailiff’s appointment was set. The Hill’s sought further time to pay the arrears and applied to suspend the warrant. A DJ ordered the warrant to lie on the file, as an administrative act. There were two further applications for bailiff’s appointments, two further applications to suspend and two further orders that the warrant lie on the file. At a further hearing, some 5 months after the date of possession, the DJ ordered that the warrant lie on the file for 21 days pursuant to his powers under s.123 County Courts Act 1984. Plymouth appealed on the basis that the power to order the warrant lie on file did not exist, or if it did, the DJ could not suspend execution of the warrant beyond the 6 week period specified in s.89 Housing Act 1980.

Held by the Circuit Judge:
The Court could hear the appeal although the outcome was now academic.
The DJ was exercising a judicial power, not an administrative one.
The power to order that the warrant lie on file in this case did not exist.
The correct power was the one to suspend and this was limited to being up to 6 weeks under s.89 HA 1980 and there was no judicial or administrative power to delay it after that time.

As ever, thanks to Jan Luba QC and HHJ Madge for the updates.

Disrepair miscellany

Published by NL on 13/12/2009 in Assured Shorthold tenancy, Disrepair, FLW case note, Housing law - All, Leasehold and shared ownership, Nuisance, Unlawful eviction and harassment, assured-tenancy and secure-tenancy. 1 Comment Tags: , , .

The December Legal Action also has the annual housing repairs update. A big tip of the hat to Beatrice Prevatt.

We’ve covered most of the cases here, but there are some others that are well worth a mention…

Brunskill v Mulcahy [2009] EWCA Civ 686 (no link)
This was a claim under S.11 Landlord and Tenant Act 1985 for personal injury from a fall supposedly due to moss or slime on the front steps to the property. At first instance, presence of the moss was held not to be a breach of the landlord’s S.11 duties. The Claimant’s appeal to the Court of Appeal (or possibly the application for permission) was dismissed.

Then a combined High Court and Court of Appeal case:
Bole & Anor v Huntsbuild Ltd & Anor [2009] EWHC 483 (TCC)
We’d missed this one from the Technology and Construction Court and on appeal. A house had been built for the claimants by the defendant builders and second defendant structural engineers. It had been built with inadequate foundations. C claimed it was thereby unfit for habitation and calso claimed against the structural engineers under s.1 Defective Premises Act 1972.

The Court held:

  • Unfitness for habitation was a matter of fact
  • It related to defects making the dwelling dangerous or unsuitable for the purpose, not minor defects
  • A defect in one part of the dwelling may render the whole dwelling unsuitable for habitation
  • Defects may render the dwelling uninhabitable even if not evident at the time the dwelling was completed.
  • The effect of the defects as a whole must be considered.
  • Considering the defects as a whole, the property as uninhabitable under DPA s.1 as the unstable foundations resulted in movement, cracking and heave. It was potentially dangerous.

The Court ordered remedial works of £214,116.91 and general damages of £4,500 (agreed).

The Structural Engineers appealed to the Court of Appeal, [2009] EWCA Civ 1146 (no link). The appeal was dismissed.

Whether or not a dwelling is unfit depends on the facts of the case.
It is relevant if it is necessary for the occupants to leave the property for a long period while remedial works are carried out. When the judge below referred to unfit for purpose, it was clear that he meant unfit for habitation – the purpose of a residential dwelling being safe and convenient occupation. There was no obligation to consider each defect individually, where the question before the Judge was whether the whole dwelling was unfit.

The Judge was also entitled to conclude that the cost of remedying all the defects was attributable to the defective foundations and a foreseeable consequence of the breach of DPA s.1. He was not limited to awarding the costs solely of making the dwelling fit for habitation.

And then some County Court cases on quantum:
Gorman and Lane v Lambeth LBC, Lambeth County Court, 1 November 2009.
The claimants were leaeholders of a 1 bed ground floor flat in a converted terrace. In 1994 they had reported cracking to the bricks over a rear bay window due to subsidence. Over the next 7 years Lambeth inspected and sent surveyors, who recommended underpinning works. Nothing happened apart from inspection pits being dug and wooden supports put in. Further consultations in 2004 resulted in no works but some further supports. The cracks made the whole flat draughty, cold and damp. In 2005 the Claimants could take no more and sold to a developer for a substantial undervalue.

The Claimants claimed for loss on sale and other loss, damage inconvenience and distress. A joint expert found the undervalue on the sale to be £100,000. The claimants claimed the 100K, plus general damages of £22K, special damages of £1500 and interest over 3 years at £25K.

The claim was settled at the door of court for £120,000 plus costs.

Aslam v Ali, Birmingham County Court, 10 June 2009.
The Claimant, his wife and eight children lived in a 4 bed house. From 2003 to 2006 the central heating only worked in two rooms. The windows were rotten and draughty in the kitchen and bathroom. There was penetrating damp and defective plaster in kitchen and hallway. During the winter, the whole family had to sleep in two rrooms and use extra blankets. The boiler was replaced in 2006. Windows were replaced in kitchen and bathroom by the tenant but the other defects remained.
Damages:
50% of the rent of £60 per week from 2003 to 2006
33.3% of the rent from 2006 to 2009
Special damages including costs of extra blankets and the replacement windows and doors.

Smyth v Farnworth, Wigan County Court, 3 September 2009
Private tenancy. The tenant suffered water penetration to a conservatory throughout the tenancy, a defective boiler from July to November 2007, a missing gutter and damage to the bedroom ceiling following a leak – itself promptly repaired. There was also a five week period of intimidation of the tenant, including threats of eviction.
Damages:
£1,000 per annum for the leak to the conservatory (!!!)
£1,000 per annum for the defective boiler
£2,200 total for the other defects,
making a total of general damages of £4,700
£500 for the intimidation
£5,000 for exacerbation of the tenant’s depression through disrepair and the intimidation
£3,500 for exacerbation of her son’s asthma over two years.
(If the solicitors, or Counsel Sonia Birdee are reading this, what was the rent? Seriously, we need to know this.)

And lastly an HSE prosecution (hurrah – that is a whole two this year that we know of against private landlords).
Health and Safety Executive v Hussain, Stafford Crown Court, 20 February 2009
The Defendant rented out 12 properties, 9 of which had gas appliances. Only two had current gas safety certificates. On inspection a number of appliances were found to be immediately dangerous and others were at risk. The Defendant pleaded guilty to specimen charges under the health and Safety at Work Act 1974 s.2(2). He was fined £40,000, ordered to pay £44,500 costs, with 18 months imprisonment in default of payment.

Unlawful eviction quantum again

Published by NL on 13/12/2009 in Assured Shorthold tenancy, FLW case note, Housing law - All and Unlawful eviction and harassment. 5 Comments Tags: , .

Aricioglu v Kaan Clerkenwell & Shoreditch County Court, 16 October 2009.

The December 2009 Legal Action Housing Updates included this County Court claim for harassment and unlawful eviction.

Mr A rented a room in a shared house from Mr K for £75 per week in January 2009. He paid £150 deposit and £150 advance rent. He shortly thereafter lost his job and told Mr K that he could not pay his rent nd was not eligible for HB. Mr K gave him a week to find work, then a further week, after which he would have to get out. An LA tenancy relations officer informed Mr K by letter that he could not evict Mr A other than by due process. Mr K threatened Mr A and said he would be thrown out if he did not leave by 18 February, and kept up such threats on a daily basis, despite a visit from the tenancy relations officer. On 20 February, Mr a was forcibly evicted by Mr K and other men, including pushing and kicks, so that he fell down the stairs suffering cuts and bruises. His possessions were brought out after him.

In a recurring motif, the police were called but wouldn’t help as Mr A had no written tenancy agreement and Mr K had kept the keys.

Mr A managed to find some places to stay for the next few nights, then applied for re-admittance with a claim for unlawful eviction. After the hearing of the application and at the Court, Mr K and a friend threatened Mr A to the extent that he was too frightened to pursue the injunction. He found somewhere to stay some 4 weeks after the eviction.

Mr A pursued the claim, with other elements. At trial, damages were awarded as follows:
Return of the deposit and three times penalty under HA 2004 s.214(3) – £600
Harassment before eviction – £1,000
Trespass to person, premises and property – £1,000
23 nights at £125 per night after the eviction – £2,875
Aggravated damages (both for the manner of the eviction and the threats after the hearing aimed to stop Mr A proceeding with his claim) – £2,500
Exemplary damages, where Mr K was clearly trying to avoid proper proceedings for possession despite the tenancy relations officer’s warnings – £2,000
Giving a total of £9,975, plus interest of £332.50 for 4 months)

In addition, as there had been a part 36 offer to settle for £5,000, costs were awarded at the indemnity rate after the 21 days had expired without response.

Now, the cynical part of me says, the very best of luck with enforcing that judgment. I take it that some time will have been spent with the Land Registry…

Unlawful Eviction Quantum – from Legal Action

Published by NL on 19/10/2009 in FLW case note, Housing law - All and Unlawful eviction and harassment. 2 Comments Tags: , , , .

Hunt v Hussain, Epsom County Court 31 July 2009 (LAG housing law updates October 2009)

As ever, the Legal Action housing law updates have some useful cases, this from the October 2009 issue. This is another of the reports on County Court judgments on unlawful eviction and harassment cases that are very useful in assessment of quantum.

Mr & Mrs Hussain were freehold owners of a house. Mrs Hussain granted Mr Hunt an assured shorthold tenancy of a room in May 2003 at £90 pw.

Mr Hunt lost his job and applied for housing benefit. Mrs Hussain told him he would have to leave. Despite a warning from the LA’s Environmental Health Department (?) that a court order would be needed, the Hussains changed the lock and refused to re-admit.

Mr Hunt was street homeless for 3 months, occasionally with friends but mostly sleeping rough. He suffered from asthma, which was exacerbated, and he developed depression and feelings of self-harm. Four years later he was diagnosed as suffering from severe depression, agoraphobia and paranoid ideation. He was unable to work. The psychiatrist found the eviction had generated the detoriation in Mr Hunt’s mental health.

The LA brought a criminal prosecution against Mrs Hussain under S.1 Protection from Eviction Act 1977 (and congratulations to Epsom and Ewell for doing so), resulting in a fine of £300 and costs of £250.

In a civil claim for unlawful eviction and personal injury, judgment in default was entered.

HHJ Reid QC assessed damages as follows:
Unlawful eviction: £125 per day for 65 days. (Somewhat oddly, the Court refused to assess damages over 76 days, apparently on the basis that the tenancy could have lawfully been determined by serving a s.21 notice. Could either Counsel, Robert Latham, or Dambudzo Matiti of Surrey Law Centre, who acted for Mr Hunt, elucidate?).

Personal Injury: £45,000. Awarded in view of the JSB guidelines on damages for psychiatric injury. Also exacerbated asthma. The case fell into the most severe category for psychiatric damage – £35,000 to £74,000. The damages were not at the top end as Mr Hunt had a predisposition to mental health problems and the Court did not accepted the eggshell principle wholly applied.

Special damages: £100 (of £730 claimed)

Interest of £3,453.

Also granted was a freezing injunction restraining Mr Hussain from dealing with two properties in which he still retained a beneficial interest.

An interesting case and a useful reminder to Claimant advisors to fully consider consequential damages, including Personal Injury. There are some odd features, not least the 65 not 76 day decision. It would also be good to know whether the freezing injunction was in terms of Mr Hussain disposing of an interest before a charging order could be obtained on the properties, or in terms of managing let properties.