09/02/2011

On crowbars and considered conduct

Strydom v Fowler. Brentford County Court 24 November 2010

A County Court case involving possession, unlawful eviction, trespass and Housing Act 1988 s27 and s28. Our thanks (as ever) to the Legal Action ‘Recent Developments in Housing Law’ for this one.

Mr F was the assured shorthold tenant, on  what had become a statutory periodic tenancy. The landlord was Mr S. Mr F built up rent arrears, eventually agreed at £2189, after the deduction of the deposit. On 16 May 2008, Mr S began possession proceedings, alleging rent arrears and damage to the property. At about this time, Mr F texted Mr S saying  that he would be ‘out in two weeks, maybe sooner’.

Mr F went on holiday. On his return on 27 May he found the locks changed. He forced entry and found Mr S inside holding an iron bar. Mr F ran, breaking his heel climbing over a gate.

Mr F counterclaimed in the possession claim for damages under s.27 and s.28 Housing Act 1988, breach of covenant for quiet enjoyment and trespass.

At trial HHJ Oppenheimer awarded £2,600 to Mr S for rent arrears and damage to the property.

On Mr F’s counterclaim, he found that there was a threat of physical violence. Mr F’s text was only an expression of an intention to leave, not a determination of the tenancy. Mr S had entered unlawfully and did not have reasonable cause to believe Mr F had left, as the beds were made and toiletries present.

The agreed difference in the value of the property with vacant possession and with Mr F in occupation was £12,500. Taking Mr F’s conduct into account under s.27(7), given that it was unreasonable of Mr F not to have been in touch for 5 weeks or responded to text messages, the statutory damages were reduced to £2,500.

Damages for breach of covenant were assessed at £3,000

Aggravated damages for trespass assessed at £1,250

Total damages on the counterclaim £6,750, to be set against the award to Mr S.

Comment

We’d be interested to hear from Francis Ratcliffe, who acted in the case. A £10,000 reduction in statutory damages for ‘not being in touch or responding to texts for 5 weeks’ seems harsh on the face of it. There may be more to the context, of course, but it doesn’t appear that there was anything near enough for Mr S to assume Mr F had vacated or effectively surrendered the tenancy. And then that failure to be in touch set against a finding that there was a threat of violence? Hmm

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.

2 Comments

  1. Marcin

    That sounds as if the judge has imported a form of contributory negligence into unlawful eviction. That surely can’t be right?

    Reply
    • NL

      Housing Act 1988, s.27(7)
      If, in proceedings to enforce a liability arising by virtue of subsection (3) above, it appears to the court—

      (a)that, prior to the event which gave rise to the liability, the conduct of the former residential occupier or any person living with him in the premises concerned was such that it is reasonable to mitigate the damages for which the landlord in default would otherwise be liable, […]

      the court may reduce the amount of damages which would otherwise be payable to such amount as it thinks appropriate

      So conduct counts.

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