Catching up with LAG

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.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, assured-tenancy, Deposits, Disrepair, Housing law - All, Introductory and Demoted tenancies, Unlawful eviction and harassment and tagged , , , .

6 Comments

  1. Re Cashmere case – that’s the sort of damages I want to see awarded. Tortfeasors should learn that tort does not pay!

    • It is the s.27/28 HA 1988 damages that really make it up – the measure being the value between the premises with the tenant in occupation and without. But these don’t apply for an attempted unlawful eviction, unfortunately.

      I would argue generally for a more forceful approach to exemplary damages, where the ‘punitive’ amount to show the tortfeasor it doesn’t pay is arguably the increase in value obtained through the tortious act, via Rookes v Barnard [1964] AC 1129, HL and Design Progression Limited v Thurloe Properties Limited [2004] EWHC 324 (Ch) for example. Where there is an unlawful eviction of a Rent Act tenant, for instance, the increase in the value of the property could be significant, and on those precedents, it is the profit the tortfeasor intended to realise that is the measure, not any profit actually made.

      I rather think we don’t make enough of exemplary damages, tending to treat them as an adjunct of aggravated damages.

    • And, from memory, ss27/28 don’t bite where the tenant has been readmitted. I’m entirely with you on exemplary damages though

    • It doesn’t bite then, true. I was more or less classing that as ‘attempted’ eviction.

  2. On the O’Brien case, I did a post on this on my blog also, where I indicated that I thought the decision strange.

    I have now been contacted by DJ Silverman who tells me that the case paperwork gave no indication that the deposit had been paid after the service of the section 21 notice. In fact, quite the opposite. Which is why he dismissed the claim. When he was made aware of the true facts, he made the order for possession, without the need for a further hearing.

    I think it is only right that people are made aware of this.

    Re the Cashmere case, I entirely agree with you about the damages issue. In fact both cases were shocking, and I am glad that at least some justice has been done.

  3. And around we go…the landlord chucks them out…the police are called…they don’t know the law…etc etc. When will it end?

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