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?