15/06/2010

A bumper pack of unlawful eviction – updates from Legal Action

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.

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.

7 Comments

  1. Marcin

    When I read this on the Landlord Law Blog, I had much the same thoughts you did on exemplary damages. I find this particularly odd, as the measure is prescribed by statute.

    Reply
  2. jh

    The exemplary damages may make an interesting legal point. Yet many of the case above contain physical assaults – where is the Police action or criminal prosecutions in these cases?

    While I understand this site is about legal points, the absence of any reporting (or even action?) on separate criminal convictions is worrying

    Reply
    • NL

      jh, as you’ll probably know, police ineffectiveness in the face of unlawful evictions has been a frequent theme on the blog. The usual police refrain is that it is ‘a civil matter’. Sometimes, police have even helped to remove the tenant from the scene.

      Whether there were any charges or prosecutions for assault as a result of events in these cases, I simply have no idea. And I won’t unless people tell me. We would of course note prosecutions when they took place, if we knew about them.

      Reply
  3. Paul Chapman

    This is happening to me right at the moment. My landlord has changed the locks and refuses to let me back in the property I’ve lived in for 17 months. I owe no rent and I pay on time every week. I will update after I speak with the council on Monday. I have also raised a crime report with the police, who initially told me it was a civil matter.
    Ive had a sofa to sleep on over the weekend at a friends. I feel violated that he entered my room and im worried about my belongings. ive put up with weeks of him asking me to leave, sometimes he has been aggressive towards me. anyway hopefully its resolved in the morning :)

    Reply
    • Giles Peaker

      Sorry to hear this, Paul. The council tenancy relations should be your first call.

      Reply
  4. Paul Chapman

    All sorted. Basically, I had to make a police statement about the illegal eviction before I can do anything else. Now the council will most probably take over the crime file from the police and prosecute.
    The landlord could have been funny and made me pay to rechange the locks with police present, but he has agreed to copy the keys and issue to me. I have to wait until 8.30pm so few more hours, but then im hone :)

    Reply
    • Giles Peaker

      Good! You should find a solicitor to ask about a civil claim alongside any criminal case.

      Reply

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  1. Garden Court Chambers | Alex Grigg - […] Fahkari v Newman (Legal Action June 2010 p35) significant damages were awarded for disrepair and unlawful eviction. […]

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