Tag Archive for 'illegal eviction'

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.

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.

Unlawful Eviction and Harassment quantum

Published by NL on 15/05/2009 in Assured Shorthold tenancy, FLW case note, Housing law - All and Unlawful eviction and harassment. 0 Comments Tags: , , , , , .

The May edition of Legal Action’s housing updates contains a report on Khan v Iqbal, Bury County Court, 13 March 2009.

Ms Khan was an assured shorthold tenant on rent of £650 pm. She lived with her children aged 15 and 12 She got into rent arrears.

The landlord and his sons interrupted the electricity supply and turned off the central heating. They cut telephone line. The landlord attended the property and verbally abused Ms Khan.

On 10 May 2008, one of the landlord’s sons entered the property and began removing the tenant’s belongings. The police were called and in their ever helpful way with unlawful evictions, assured Ms Khan that she could return to collect her belongings and gave her the number for a refuge. The family was put in a B&B as emergency temporary accommodation by the Council. Ms Khan returned the next day to find the locks changed and most of her possessions missing or damaged.

Awarded – Harassment £2000 (Joint and several liability for landlord and sons)
Unlawful eviction £10,200 (at £100 per night)
Aggravated damages of £200
Exemplary damages of £3000
Special damages of £2338.32

If any one from Bury Law Centre, or Angela Piears, barrister, are reading this, I would be very interested to know how the exemplary damages were caclulated. Drop me a line…

Emergency remedial action

Published by Francis Davey on 05/05/2009 in Assured Shorthold tenancy, Disrepair, FLW case note, Housing law - All and Unlawful eviction and harassment. 0 Comments Tags: , , , , , .

In Luton Borough Council v Universal Group we have the first (and almost certainly last) decision of the Lands Tribunal under the Housing Act 2004 on appeal from a Residential Property Tribunal (or RPT).

15-17 Chapel Street, Luton is (or was) consisted of a night club on the ground floor and 11 storeys of 13 residential flats rising above it. The electricity and water supply to the building had been cut off by the landlord (according to their evidence because there had been a major water leak in the building). The local fire service had also expressed some concern — according to the landlord because the fire alarm for the building was integrated with that of the nightclub — and had served an emergency notice on the club.

The lack of light and water understandably caused concern to Mr Skepelhorn, the tenant of Flat 11, who complained to the council. The council’s officer arrived and found one of the landlord’s employees boarding up the property because it “was unsafe” although it appeared to the officer that the reasons for the lack of safety were the lack of water, electricity and the presence of some of the landlord’s men on the property who appeared to be throwing things out.

I interject to say that the phrase “classic unlawful eviction” came to mind as when I first read the RPT decision. A landlord allows or encourages a property to become dangerous to its tenants and then is “forced” to evict them for their own safety. Such landlords often seem baffled that courts do not assist them with alacrity in such a public spirited endeavour.

The council warned the landlord that there were tenants in the property and that the landlord was required to use lawful means to evict its tenants.

The following day the council received a telephone call from Mr Skepelhorn that a carpenter was trying to board up the property. Exchanges with the landlord made it clear that the landlord had no intention of sorting out the problems with light and electricity. The council’s officer attended the property.

He decided that there were category 1 hazards on the property and (after a call to his line manager) that emergency remedial action should be taken. Notices were hand delivered to flats 7, 10 and 11 (where there appeared to be individuals still in occupation).

The remedial action consisted of sending a council plumber to turn on the water though in “Carry On” style the fire hoses had been left on so a certain amount of scrambling around was needed to turn them off. Someone had removed the main fuse carriers so EDF were called to reinstate the power supply. Mr Skepelhorn was able to return to his flat.

The Council then served a notice of emergency remedial action (pursuant to s.41 of the Housing Act 2004) on the landlord. Identifying three category 1 hazards: falling on stairs due to lack of light, falling on levels due to lack of light and absence of domestic water supply. Total cost of remedial works: £215 plus admin charge of £50.

Somewhat surprisingly, the landlords appealed the notice to the RPT. The landlord agreed that there were category 1 hazards on the premises but argued that they were so dangerous that the proper action that the Council should have taken was an emergency prohibition order.

The RPT agreed. In their view given the imminent risks emergency action of some kind was warranted. They reasoned that, although the emergency remedial action would deal with the hazards identified in the notice, there were almost certainly other hazards. Their reason for favouring an emergency prohibition order (“EPO”) was that:

an emergency prohibition order would have the benefit of immediately removing all occupants and visitors from the identified risks, would not have created other potential hazards and would have prevented any other persons from taking up occupancy, even on a temporary basis.

Now an EPO does no such thing. It does remove the security of tenure of Housing Act 1988 and Rent Act 1977 tenants, but it does not automatically end existing tenancies (you have to apply to the tribunal for that) nor does it magically prevent squatters. It does push a landlord into either doing something about the hazards or evicting its tenants fast, but the landlords in this case appear to have been doing the latter rather eagerly without encouragement.

On appeal to the Lands Tribunal, the landlord (who may have received some better legal advice) had agreed with the Council not to oppose in exchange for the charge under the notice being waived. The appeal was therefore unopposed.

The Lands Tribunal upheld the appeal. Its reasons were short:

There were (as was common ground) category 1 hazards on the premises. Those could be dealt with, and were dealt with, at a cost of £215. No reasonable person would have considered it justifiable to deprive Mr Skepelhorn of his home in order to avoid executing work costing £215. Luton’s decision to carry out its obligation to take appropriate enforcement action by taking emergency remedial action was the correct decision. If it had decided (as Universal suggested) that an emergency prohibition order would have been the proper course, that would have been an impeachable decision because the enforcement action would not have been the appropriate enforcement action.

Quite.

The decision is interesting because we the Council argued, deploying Cosic, Lambeth and Kay that it would be disproportionate for them to interfere with Mr Skepelhorn’s Article 8 rights. The Lands Tribunal also dismisses a number of other conclusions of the RPT for example a refusal to admit hearsay evidence and a finding that emergency remedial action could not be taken unless and until a full HHSRS inspection had been carried out.

I am relieved to see the Lands Tribunal putting right what seemed an astonishingly bad RPT decision that appeared to support the landlord’s efforts to carry out an unlawful eviction. Given that Mr Skepelhorn was (according to the landlord) the last tenant in occupation, one can’t help thinking that Housing Act damages could be quite large.

As I said at the outset, we will be seeing the last of the Lands Tribunal next month when it is abolished and replaced by the Lands Chamber of the Upper Tribunal. One positive side-effect of the change will be that the Upper Tribunal is a superior court of record and so its decisions ought to constitute binding authority on RPT’s and LVT’s. That can only be a good thing.

Bits from LAG and nuisance & Art 8

Published by NL on 06/04/2009 in FLW case note, Housing law - All, Nuisance, Possession, Unlawful eviction and harassment and secure-tenancy. 0 Comments Tags: , , , , , , , , , , .

There are several cases in the latest LAG updates that we haven’t covered and that are interesting. Thanks as ever to Jan Luba QC and HHJ Nic Madge for the LAG reports. There are two brief notes on County Court cases and a more sizeable one on Dobson v Thames Water, a Court of Appeal case on nuisance and Art 8 infringement that we had somehow missed from January and which isn’t discussed at length in LAG.

Southwark LBC v Jackson and Jackson, Lambeth County Court 27 January 2009
Mr & Mrs Jackson were elderly joint secure tenants. Mr Jackson had died, leaving Mrs Jackson as sole tenant. Southwark served Notice to Quit on the basis that the tenancy had ceased to be secure due to failure to occupy as only or principal residence. Possession proceedings were brought on that basis, with alleged unlawful subletting and rent arrears. Mrs Jackson did not attend and an outright order was made, followed by warrant. Mrs Jackson applied to set aside the possession order on the basis that she was not living at the property because repairs had not been completed.

At the hearing of the set aside application, Mrs Jackson argued that the Notice to Quit was invalid, giving only 27 days notice rather than 28, and the saving clause didn’t save it. This had not been raised or noticed at the possession hearing. The Court had a power to set aside the order under CPR 3.1(7). Southwark acknowledged the notice was deficient but argued it should not be set aside just for that reason.

The Court, HHJ Gibson, set aside the PO. If the first Court had considered the deficient notice, the PO would not have been made. To let it stand would be to force the tenant from her home other than in accordance with the law. This would be a breach of convention rights.

In addition the Court observed the initial possession hearing had been dealt with very summarily. The DJ did not appear to consider whether Southwark had made a prima facie case that the tenancy had ceased to be secure. Southwark’s own pleading mentioned the presence of someone who said he was the tenant’s grandson, but there was no address to whether or not he was a caretaker for the tenant. From Southwark’s pleadings, there appeared to be significant doubt about whether the tenant had actually parted with possession, which circumstances would also make the possession order unlawful.

That point, that to give possession on anything less than a lawful Notice is a breach of the tenant’s convention rights, could be useful to raise with a DJ otherwise minded to condone ‘minor errors’ or ‘oversights’ in notice. Likewise, to fail to set aside a PO based on defective notice.

Also useful is the insistence that even an undefended summary possession hearing should involve some scrutiny of whether the prima facie case is sufficiently made out.

Evans v Ozkan and Hussein, Bromley County Court 6 February 2009.
Unlawful eviction and harrassment quantum. Mr Evans was a private assured shorthold tenant. The landlords knew he was on benefits before the tenancy began. After about a month, following a delay in HB, Mr Hussein visited, intimidated Mr Evans and demanded £1000. Soon afterwards, Mr Evans returned home to find some of his belongings on the pavement and the defendants throwing out more. Mr Evans was verbally intimidated by Mr Hussein.The police were called and (helpful as ever in cases of illegal eviction, which is, as they constantly need to be reminded, a criminal offence as well as civil one) arrested Mr Evans. On his release later that day, Mr Evans found many of his belongings smashed on the pavement and smelling of urine. Mr Evans slept in his car and returned the next day to find the locks changed. The Defendants followed him to a pub, threatened him with baseball bats and demanded £1000, or his remaining belongings would not be returned. Mr Evans applied as homeless and was eventually rehoused 63 nights later, during which time he was homeless. He claimed for trespass, harassment and unlawful eviction

The defence was struck out for failure to comply with directions and the Defendants represented themselves at hearing.

HHJ Hallan awarded: general damages of £250 per day that Mr Evans was homeless (£15,750), and interest from the date of rehousing; special damages of £5000; aggravated damages of £1000 and exemplary damages of £2000, with interest from date of eviction. Damages otherwise payable under the Protection from Harassment Act 1997 were part of the aggravated damages. Exemplary damages were levied as the Defendants had sought to avoid the due process of law and its attendant costs (presumably, this would apply to virtually any unlawful eviction?).

And – how did we miss this one? – Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28. Going beyond the LAG note, this is a claim in nuisance,negligence and under Art 8 of the convention. Following a hearing of preliminary issues, the Court of Appeal was asked how damages for breach of Art 8 should be assessed, given that the claimants’ enjoyment of their homes had been impaired. The Court was also asked whether such damages would be payable in addition to those in nuisance and negligence.

The issue is that, following Hunter v Canary Wharf [1997] AC 655, damages for private nuisance at common law appeared to the Judge in the court below to be based upon these paras in Hunter:

184(1) That damages awarded for nuisance, where there has been personal discomfort, are assessed on the basis of compensation for diminution of the amenity value of the land rather than damages for that personal discomfort.

184(2) That damages for diminution of amenity value are measured by reference to the size, commodiousness and value of the property not the number of occupiers.

184(3) That damages for compensation for diminution of amenity value of the land may be reflected either in diminution of capital value or rental value.

184(4) That damages for diminution in value frequently raise difficult issues of assessment which can usually be resolved by expert evidence. If such assessment is not reasonable or practicable then the principles on which damages are assessed are sufficiently flexible to do justice between the parties by arriving at a sum for general damages for loss of amenity.

Whereas Art 8(3) says that damages for breach of art 8 rights must accord ‘just satisfaction to the injured party’. the Claimants suggested that this would either potentially ‘top up’ an award of damages for nuisance, or enable separate damages for those without a proprietary interest, but resident – a child or foster-child, for instance.

The Court of Appeal held that:

Damages in nuisance are for injury to the property, not the sensibility of the occupier, Hunter v Canary Wharf.

Where this is for ‘transitory’ nuisance such as loss of amenity, the calculation may be based on loss of market value, but this must take the personal experience of all the occupiers into account, not just that of the person with the proprietorial interest. So the actual impact on the occupiers is relevant. (Certainly non-occupation means no damages, unless the property was being sold or rented and suffered a loss in value, or there was physical injury [para 34]).

The award of damages in nuisance is not to compensate other occupiers of the property, only the person who has the right to sue in nuisance.

Where the creator of the nuisance is a public authority, then Art 8 rights will be engaged. However, the Lords decision in Marcic v Thames Water Utilities Ltd [2004] AC 42 means that where no negligence is alleged, not even the owner of the property would have an Art 8 claim, let alone the other occupiers. So this is a limited issue, for nuisance caused by negligent public bodies only.

Under the convention:

where a public authority has been found to have acted “unlawfully” the court “may grant such relief or remedy …as it considers just and appropriate”. No award of damages is to be made unless, taking account of all the circumstances including any other relief or remedy granted in relation to the same act, the court is satisfied that the award is necessary to afford just satisfaction. In determining whether to award damages, or the amount, the court must take into account the principles applied by the European Court under Article 41. [para 41]

Strasbourg case law has given little guidance on the award of damages. This is a test case, where the claim is, in part, on behalf of an identified individual who has not, personally, had ‘reparation’ under english law. However, it is not irrelevant that this person’s parents may be awarded damages under nuisance and what sums they are awarded. This is part of a consideration whether it is necessary to make an award for just satisfaction, or would a declaration of infringment suffice, alongside the award of damages to those with a proprietorial interest. Where the issue is loss of amenity, the effect on the whole household should already have been considered as a relevant factor – see above – and this would be highly significant in considering the amount, if any, of Art 8 damages to the non-proprietorial occupier.

On whether an Art 8 ‘top-up’ of damages over those calculated for nuisance may be made, the Court of Appeal admits the possibility, but considers it very improbable indeed that Strasbourg would make an award above and beyond an award in damages for common law nuisance [para 50]. Normally, such damages should be considered sufficient.

As to co-owners, if both are in occupation, the effect of the nuisance on each of them should have been considered in the assessment of damages, so splitting the award does each justice. Where one co-owner is not in occupation, for a loss of amenity claim, it would be inequitable for them to claim a share of the award.

So, in a nutshell, it will usually be the case that the claim in nuisance and negligence by the person with a proprietorial interest in the affected property will, if the relevant factors are taken into account in calculating loss of amenity, also constitute just satisfaction for the other occupiers for the purposes of Art 8 infringement. This is because the experience of the whole household is a relevant factor for assessing loss of amenity value.

On the Naughty Step – guest post

Published by NL on 10/01/2009 in Housing law - All and Unlawful eviction and harassment. 0 Comments Tags: , , , .

[In a bit of an innovation, we have a guest writer for a naughty step post. My grateful thanks to M for a cracking post....]

You get the distinct impression with some that it’ll take a bit more than being placed on the naughty step for them to see the error of their ways. So it seems with the former landlord Steven Dickens. Dickens, together with his partner Yasminah Jhurry, was found guilty at Knutsford Crown Court at the conclusion of a seven week trial on multiple counts of mortgage fraud whereby £690,000 was illegally obtained. They now face the possibility of a confiscation order and jail sentence.

naughty step badgeDickens built up a large property portfolio to become one of the largest private landlords in North Wales. He operated at the lower end of the market, buying up HMOs and letting them to benefit recipients. Unfortunately, Dickens’ seemingly inexorable rise was funded by dodgy mortgage applications, in which he supplied bogus references, lied about his employment and income, and claimed he would be living in the properties. Dickens even claimed on one application to be selling double glazing when he was actually serving time for violent disorder.

Having, in the words of Judge Stephen Clarke, built his housing empire on “the shifting sands of fraud” one might have thought the budding buy-to-let entrepreneur would have kept his head down and concentrated on quietly paying off the mortgages. But not Dickens. He had his own style of getting things done, which owed more to Rachman than Octavia Hill. He quickly became notorious locally as a landlord who routinely threatened and intimidated his tenants. Local housing agencies became used to a steady flow of tenants complaining of damp flats, exorbitant utility charges, faulty gas appliances, and non-return of deposits. Tenants waiting for Housing Benefit claims to be processed told of how they were threatened with being physically removed from their homes if the rent wasn’t paid come Friday.

Unsurprisingly Dickens became a problem for Conwy County Borough Council, on whom the responsibility often fell for re-housing those fleeing harassment and poor conditions. However few of the victims were willing to confront Dickens in the courts.

But Dickens‘ arrogance was to prove his downfall. First, he had the dubious honour of becoming the first landlord to be the subject of an ASBO for harassment and threatening unlawful eviction. During the trial the court heard evidence Dickens had threatened local authority officers, boasted of knee-capping a man, and offered a housing benefit officer £20,000 for information on former tenants who owed him money. Dickens’ novel response to the ASBO application was to threaten the local housing authority that he would make all his tenants homeless.

Following the ASBO, in an apparent bid to influence the outcome of planning applications for his planned café businesses, Dickens indicated applications might instead be submitted for sex shops. Somewhat bizarrely, we were granted an insight into his thoughts on the judiciary when mannequins appeared in a Dickens’ shop front window dressed in saucy attire and judges wigs (scroll down to 6 Nov “Welsh Wind“). (Ever the diplomat, Dickens struck a conciliatory note. He said he would rather have a coffee shop than a sex shop. The council subsequently approved the planning application for the coffee shop).

Such hilarity was short lived however. Within weeks of the ASBO being handed down, Dickens unlawfully evicted a young single mother, resulting in an eight week stretch. A conviction for breaches of Gas Safety Regulations followed, a rare example of the Health and Safety Executive issuing proceedings against a residential landlord.

While displaying complete disdain for the authorities, Dickens had not figured on North Wales Police conducting a lengthy investigation into his mortgage affairs.

In December 2005 a High Court order appointed a receiver, giving them responsibility for managing Dickens’ properties and business interests. Dickens subsequently placed his properties up for sale by auction, but was denied access to the profits pending the outcome of the mortgage fraud prosecution.

Dickens, Jhurry and Dickens’ mother June (who pleaded guilty to a similar offence on the first day of the trial relating to the family home), shall be sentenced on 2 February. I suspect there will be few of his former tenants with much sympathy for the disgraced wannabe gangster tycoon. Those who were made homeless might be forgiven for hoping he’ll now suffer the same fate.

M.

Illegal Eviction and Disrepair damages

Published by NL on 05/06/2008 in Disrepair, FLW case note, Housing law - All and Unlawful eviction and harassment. 0 Comments Tags: , , , , , , .

There were a couple of cases mentioned in the June issue Legal Action that are worth a consideration when looking at quantum in illegal eviction cases, and also to some extent in disrepair cases. Legal Action has the full details, but in brief…

Addison v Croft Preston County Court April 2008
Assured Shorthold tenant. Landlady turned up with estate agent and buyer with no notice. A fortnight later, the tenant was physically ejected by four men, with some bruising. The tenant was out, sleeping at friends and in his van for 20 nights, before obtaining an injunction for re-entry, which was complied with.

  • General damages £3000 for fright and upset, and 20 days out of home without possessions.
  • Aggravated damages £1000 for manner of eviction
  • Exemplary damages £1000, following Law Commission guidance in Aggravated, exemplary and restitutionary damages (LC 247)

Rubio-Manzano v Ace Lettings and Pedonomou Clerkenwell and Shoreditch County Court April 2008
Assured Shorthold tenant who threatened to withhold rent due to disrepair (of which more below). Three men turned up and forced their way into the flat, threatened the tenant, pulled the telephone out of the socket. One caused injury to another tenant by kicking the door. Defendants then delivered a letter stating that the bearer was a certificated bailiff with powers to enter and seize goods. The tenant left to stay with a friend and put most of her belongings in storage. A couple of weeks later she returned to find locks changed and belongings interfered with. Police and tenancy relations advised the tenant to break in to remove her goods. The property was then left.

In criminal proceedings, the company pleaded guilty to two counts of harassment under the Protection from Eviction Act 1977.

  • Fines £2000 and £200 for the two incidents. (The Court said if the company directors had been individually charged, there would have been a likely custodial sentence).

In Civil proceedings

  • General damages £6000 for harassment and aggravated damages
  • Exemplary damages £2000
  • Special damages £840.40

There was also a disrepair claim. Disrepair ‘throughout the tenancy’ (May 2001 – Feb 2003).

  • radiator leak in hallway, causing staining and fungus growth
  • leak to bathroom ceiling
  • mice infestation
  • bannister loose and dangerous
  • windows in disrepair and draughty
  • poor decorative state
  • oven and grill did not work

Damages for disrepair were assessed at 30% of rent for a year (£3500) with a set off of one month’s rent owed (£840.40).

Comments

On the disrepair claim, this is another data point suggesting that the Courts are open to arguments for damages based on percentage of rent following English Churches v Shine and Earle v Charalambous, rather than the Wallace scale, as I have suggested before. That said, although the report doesn’t give detail on the disrepair, 30% on the headline items seems a little low. But there are so few disrepair claims getting to trial, it is hard to be sure. Counsel for the Claimant was Robert Latham, solicitors were Hopkin Murray Beskine – anyone care to comment further?

This case also appears to be support for the view that damages based on a percentage of rent is not based on the proportion of the property that was/is occupiable or useable – the percentage is not directly a question of useable floorspace, which is an argument I have heard advanced by some Counsel. Personally, I don’t think that Niazi, Shine or Charalambous entail that view, and that this is an unnecessarily mechanistic approach to a percentage calculation.

On the illegal eviction, clearly Rubio-Manzano is more generous than Addison, particularly given the actual physical eviction and period of homelessness in Addison. £6000 for harassment and aggravated damages on the facts given for Rubio-Manzano is a high award, particularly given the previous criminal fines for harassment, and useful to cite for that reason.

Addison appears to pretty much follow the ‘£1000 per week of being out of the property’ rubric, but the aggravated and exemplary damages are also useful to cite.

By the way, Legal Action also has a report by Shelter Gloucestershire on Stankova v Glassonbury, the rent deposit case discussed here, confirming the details of Housed and my earlier reports.

 

Not the usual bug infestation

Published by NL on 14/11/2007 in Assured Shorthold tenancy, Housing law - All, Nuisance and Unlawful eviction and harassment. 0 Comments Tags: , , , , , , .

Hat tip to Cearta.ie for this extraordinary story from the Irish Times:

Landladies ordered to pay students €115,000 in damages
Simon Carswell 14 November 2007

Two Dublin landladies have been ordered to pay damages totalling more than €115,000 to 10 students who were tenants in their house after the Circuit Court found they had kept the students under secret electronic surveillance. …

The students became concerned in late 2004 that their conversations and activities were being monitored when the McKennas referred to details the students had discussed in private in the house. When they raised the issue with the McKennas, the students were evicted. … Judge Gerard Griffin yesterday found that the evidence in the case left him “in no doubt whatsoever that the defendants had kept these plaintiffs under electronic surveillance”. … He found the students’ rights to privacy had been infringed and he awarded them damages varying from €7,500 to €12,500 each.

Which raises the question of what sort of pervert would actually want to listen to endless student angst-conversations. Or watch video that would be about as exciting as the 4 am live feed of Big Brother? Surely the punishment is found in the offence itself?