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Unlawful eviction and harassment
28/02/2010

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

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…

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.

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