Kazadi v Martin Brookes Lettings Estate Agents Limited & Faparusi, Edmonton County Court 14 May 2015
Thanks to Legal Action September 2015 Housing law updates for this one.
An assured shorthold tenancy deposit and unlawful eviction case in which everyone involved save the tenant – letting agent, landlord and police – did things about as wrongly as they could possibly have done.
Mr K had a one year AST from March 2006. A deposit of £1300 (2 months rent) was paid. The tenancy became a statutory periodic in March 2007. A further (new) tenancy of the same property was entered into in April 2008 and then a statutory periodic tenancy.
The deposit was not protected at any stage, nor was prescribed information served.
At no point was the identity of the landlord, Mr Faparusi, provided to Mr K.
From the start of the tenancy there were problems with the central heating, which was not fully functional, and the toilet did not flush properly. This was reported to the managing agents, Martin Brookes Lettings, but nothing was done.
On 8 January 2014, an employee of Martin Brookes Lettings came to the property. He tried to force his way inside and was abusive to Mr K. He said Mr K would be evicted. Mr K said he would rely on the legal process.
On 11 January 2014, Mr Faparusi came to the property with another 8 men. Mr K’s visitors were thrown out, and Mr K was held down by the group. A blade was held close to his eye and he was told that if he continued to struggle he would lose an eye. Mr K was held in the flat until the police arrived, some 20 minutes later.
The police, being as utterly clueless on illegal eviction as they so often are, escorted Mr K out of the property, after a few minutes to collect some belongings. The police refused to help Mr K regain entry. (At this point, we should all recall Naughton v Whittle and Chief Constable of Greater Manchester Police. Manchester County Court 30/11/2009 ).
An agent of Mr F then contacted Mr K to collect his belongings, but when he arrived he found they had been thrown out of a window into the street and not all his belongings were returned.
After being thrown out, Mr K sofa surfed with friends for some 277 days, as his student status and relying on housing benefit made finding an equivalent tenancy very difficult.
Mr K found solicitors. Martin Brookes Lettings refused to answer to demands for the landlord’s name and address or for Mr K’s re-admission. An injunction and order under s.1 Landlord and Tenant Act 1985 were sought. This did not result in re-admission (presumably due to re-letting) but Mr Faparusi was identified and joined to the claim.
Mr K’s claim was for return of deposit and s.214 HA 2004 penalty, damages for assault and false imprisonment, disrepair, unlawful eviction and special damages for unreturned belongings.
The managing agents failed to file a defence. Mr Faparusi’s defence was struck out for break of an unless order.
At final hearing the Court awarded:
Return of the deposit of £1300
£1,300 for the breach of deposit requirements in 2008 (on the basis that the requirements were relatively new!)
£2,600 for breach of deposit requirements for the subsequent statutory periodic tenancy (2 x deposit on basis that landlord ‘should then have been aware of the law’)
£1,000 for the assault on 11 January 2014
£300 for false imprisonment
£4,450.52 in special damages for belongings not returned.
£6,825 for disrepair based on 15% of rent for 70 months.
£31,850 for unlawful eviction based on a daily rate of £170 for 186 days (being the six months that the court found it would have taken the landlord to have gained possession lawfully).
£3,000 aggravated damages.
£2,000 exemplary damages (presumably based on the costs of lawful possession proceedings)
The managing agents were ordered to pay £400 for pre-eviction harassment and 5% of the costs of the case for the failure to comply with s.1 LTA 1985.
Comment
The agents (apparently ‘under new management’ from April 2015) were undoubtedly badly behaved and ignored their legal responsibilities. But they might fairly consider themselves hard done by for damages for harassment on the basis of what appears to have been one incident on their part (harassment requiring a course of conduct).
The problem with giving the courts discretion on the tenancy deposit penalty is clearly demonstrated here. A 1x penalty because ‘the law was relatively new’ (actually a year old) is dubious.
I am also not sure about the 6 month limit on the unlawful eviction damages as being the period it would have taken to get lawful possession. The principle is that damages run until the evicted tenant obtains (or reasonably should have obtained) equivalent accommodation. Setting a time limit of hypothetical lawful possession proceedings seems to me to be an unmerited limit on damages for a statutory tort. No notice or possession proceedings were brought, so why should the landlord escape the full consequences of their unlawful act?
The police actions were, of course, completely wrong. Indeed so wrong that I wonder if a Naughton style claim might be possible. For heavens sake, how long does this utter ignorance of the law on illegal eviction in police forces have to go on!
From 1 October the Government’s How to Rent leaflet, is to become a specified document that landlords must issue to tenants. The leaflet advises tenants to contact the Police in connection with illegal eviction
“If you are being forced out illegally, contact the police. If your landlord wants you to leave the property, they must notify you in writing, with the right amount of notice – you can only be legally removed from the property with a court order”
It only advises a tenant to contact a local authority if they are being harassed.
The Association of Tenancy Relations Officers has been very concerned about the content of government publications in recent years and managed to get some minor changes to previous publications. The prescribed leaflet is much less clear than previous versions.
Websites provided by LAs include the above paragraph but also advise that the a Local Council will be usually be the body responsible for prosecuting offences.
More on that leaflet and s.21 notices coming shortly….
I know you wont agree with me on this Colin but I cant help noticing that these significant damages were the result of it being a county court claim. Poor Mr Kazadi would have got virtually nothing out of it if it had been pursued by a TRO in the criminal court and Mr Faparusi would likely have been fined a grand and given 60 hours community service.
Also I couldnt help noticing on the Martin Brooks website that a Mr Joel Faparusi is listed as still on the team.
Is he? I can’t find that.
A Joel Faparusi was company secretary, sole director, and 50% shareholder of Martin Brooks Lettings Estate Agents Limited in Jan 2015 and at all material times before – see:
https://beta.companieshouse.gov.uk/company/05734911/officers
and the January 2015 annual return available from the filing history tab. No changes of director/secretary have been registered.
There is, we should acknowledge, the possibility that this is a different Faparusi to the Faparusi who was eventually disclosed to be the landlord.
Of course. Do you have a copy of the judgment; that might throw some light on the issue?
No, it is only county court. I’ll see if I can contact the Claimant’s solicitors.
Although some magistrates penalties are less than severe, some magistrates do impose custodial sentences and fines well exceeding £1000 and costs.
A criminal conviction is also something that for some (again, not all) will be a deterrent and if publicity is used it can get a message out to landlords that taking away a person’s home is a very serious matter. Civil cases are less likely to be reported in the local press and therefore although a severe financial penalty may be imposed, not everyone will get to hear about it.
But nothing for the tenant. It is not an either/or though. Both can and should happen and can be simultaneous.
Yeah correct. You can do criminal and civil but I still think criminal is largely pointless, having done quite a few. Colin and I always disagree on this.
The worst of them, who are the ones most in the frame for a criminal prosecution really don’t care. A criminal record is either of little import or merely added to their list of previous.
There is only one real deterrent and that is financial. If the criminal judiciary start imposing the same penalties as their civil counterparts then I would say it is worth a criminal prosecution.
TROs can work in partnership with local solicitors. I’ve been doing that for years. My last case netted the evicted tenant £51,000 in compensation. It also took about half the time of a criminal case
Ben, have you ever seen successful cases of private prosecution of PEA 1977 offences where a tenant or their associate lays the information at magistrates court and it actually results in a conviction?
What would be the point, where a civil claim will be far more in the tenant’s interests?