24/11/2019

No going back

Regency (UK) Ltd v (1) Hussein Ali Hadi Albu-Swalin (2) Heartland Property Ltd (2019) QBD (Chamberlain J) 18/11/2019 (Note of extempore judgment on Lawtel)

Regency had let flats to Heartland on the basis that Heartland would sublet to occupiers. Heartland sublet a flat to Mr Albu-Swalin in 2015. Mr A-S reported defects to the condition of the property. Heartland then served a ‘notice to quit’, which was not effective as a s.21, as it did not give two months notice. Mr A-S did not leave. The locks to the flat were then changed, excluding Mr A-S and his son. Most of Mr A-S’ belongings were not recovered.

Mr A-S brought a claim for unlawful eviction against both Heartland and Regency. At trial, Regency’s director did not attend the first day, although Regency was represented by counsel. During closing submissions, Regency, on advice from counsel, conceded that it had unlawfully evicted Mr A-S.

At first instance, the Judge awarded:

General damages at £150 per day for 60 days, that being the notice period that should have been given by a s.21 notice.
£5,000 in special damages for belongings never recovered.
Exemplary damages of £4,000 as the eviction was a criminal offence where Regency had sought to obtain a better profit.
Aggravated damages of £1,000, there had been no violence, but no warning and no opportunity for Mr A-S to collect his possessions.
(There was also an award of £5,200 on the poor condition of the flat and an un-returned deposit. This was not subject to appeal.)

Regency changed legal representation and appealed on grounds that:
i) It had been given negligent advice by counsel in making the concession that it had unlawfully evicted Mr A-S and should be allowed to withdraw the concession;
ii) The Judge had erred in not applying s.27 (and s.28) Housing Act 1988;
iii) Damages were too high and aggravated and exemplary damages should not have been awarded.

On i) it was not enough to assert that previous representation was incompetent, unless also privilege had been waived and previous legal representatives had had an opportunity to explain their position to the court, following Devon & Cornwall Autistic Community Trust (t/a Spectrum) v Cornwall CC (2015) EWHC 129 (QB). In the present case, the concession had meant that the Judge had not had to make findings of fact, the appeal court could not be expected to approach the matter differently unless the case could be shown to be exceptional. There was no evidence presented that the advice on the concession was wrong, and Regency had not waived privilege. Regency’s director had not even been present on the first day, so could not comment on that day’s evidence. The ground failed.

On ii) s.27 and 28 Housing Act 1988 – these sections provided a statutory remedy for unlawful eviction, but s.27(5) meant that an occupier was not prevented from enforcing any other liability in respect of a loss of right to occupy, subject to double recovery being ruled out. Mr A-S had not pleaded s.27, and s.27(5) meant he was not ruled out from claiming under the common law for a remedy for unlawful eviction.

on iii) Damages. The Judge had been entitled to take a 60 day period and the daily figure of £150. ON special damages, Regency had not put forward any cogent reason to dispute the Judge’s broad brush approach, or the award of £5,000, significantly lower than what was claimed.

On exemplary damages, the £4,000 figure was in line with the guideline cases. There was no other explanation for the eviction than financial reasons.

There was no reason to dispute the aggravated damages award of £1,000.

Appeal dismissed. As this was a rolled up permission and appeal hearing, Mr A-S was awarded his costs under CPR PD 52B 8.1.

Comment

Well… blaming your lawyers is never going to work unless you can show that your lawyers were to blame. Without waiving privilege, there is no way for the court to decide whether the advice was bad or not. Otherwise it just looks like ‘we lost, so our lawyers are to blame’.

On the general damages issue,  I long for proper clarity on this. We had the Court of Appeal in Smith v Khan (2018) EWCA Civ 1137 hold that damages run “throughout the period during which the claimant’s right to possession subsists”. But in this case, the daily rate was awarded for the two months of what should have been a s.21 notice. Now a s.21 notice does not end a tenant’s right to possession. We have House of Lords authority on that. So, why 60 days? Why not until the tenant had obtained comparable accommodation, or the reasonable timescale for possession proceedings and a warrant?

I am also not entirely sure on the ‘common law remedy’ for unlawful eviction. Assured shorthold tenancies are excluded from s.3 of the Protection from Eviction Act 1977 by reason of section 8(1)(e), which leaves, as statutory protection s.27. If the eviction is unlawful for failure to comply with s.21 HA 1988 etc, then common law notice provisions don’t apply, so I am having difficulty with the ‘common law remedy’. I am interested in other’s views. (Update 25 Nov – I was clearly having a tired Sunday evening moment. Common law remedies for breach of contract and in tort would be claimable – eg breach of quiet enjoyment, trespass to goods etc.)

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.

9 Comments

  1. Pat

    Hi Giles. What do you mean “Assured shorthold tenancies are excluded from the Protection from Eviction Act 1977 by reason of section 8(1)(e)”? The PEA 1977 confirms that assured shorthold tenancies are statutorily protected, and s 1 (5)Nothing in this section shall be taken to prejudice any liability or remedy to which a person guilty of an offence thereunder may be subject in civil proceedings. Common law notices don’t apply to ASTs but the remedies do. Aren’t the awards that are given under “common law”? eg breach of the covenant of quiet enjoyment, loss of accommodation, loss of any belongings, costs of alternative accommodation, ie the general and special damages etc that were awarded?

    Reply
    • Giles Peaker

      S.3(1) PEA excludes ASTs as statutorily protected tenancies. S.1 PEA is the criminal offence.

      Yes, after a moment’s thought, I presumed the pleaded case was quiet enjoyment, derogation, trepass to goods etc. So effectively breach of contract and tort.

      Reply
  2. Pat

    Isn’t s3(1) PEA just confirming which tenancies have “basic protection” and also require the due process? ie not those which are statutorily protected?

    Reply
    • Giles Peaker

      But you can’t bring a civil claim for breach of s.1 PEA. It would be for breach of s.3. But AST tenants can’t bring a claim for s.3 as ASTs are excluded. (I don’t think s.2 applies either, as no forfeiture or right of re-entry for ASTs). So, for civil claim purposes PEA is irrelevant for ASTs.

      Reply
  3. Michael Barnes

    Seems far too lenient for an illegal eviction.

    Is there a criminal prosecution too?

    Reply
  4. David

    I agree, far too lenient, I think we have seen up to £300 per day but not sure what postcode.

    A tenant may have been served a S21 with 60 days notice, based on what you have reported above. that S21 would likely not be legal as it might be considered a revenge eviction.

    There may have been further discrepancies in the S21, I have managed to get tenants a further 18 months tenancy, whilst they continued to pay rent, because the incompetent landlords did not remedy all of their deficiencies.

    What if one of those deficiencies was a failure to have a Gas Safety certificate, that potentially cause a tenancy to run and run.

    EVEN IF the S21 was technically correct the tenant is not forced to leave upon expiry, if he remained it would go to Court and would take potentially a further 4 months.

    So even if a Judge was going to use S21 as a basis of what was deprived it would have been at least 6 months. It is important to point out that the idea is to be punitive to the Landlord for the illegal eviction.

    If the Notice to Quit was not even a S21 then I hope that the tenant will now check his deposit was protected and take the appropriate action for 3x the deposit if not.

    Reply
    • Giles Peaker

      Whether or not it was a ‘revenge eviction’ would have no impact on the validity of a s.21 notice. (The only ‘retaliatory eviction’ provisions are those invalidating a s.21 if the local authority has served an improvement notice or remedial order.)

      I have the first instance judgment and will be writing it up. You will see that the range of illegal eviction daily rates was considered. As the first instance Judge was HHJ Luba QC, you would expect him to be well aware of the range.

      The rest is, I’m afraid, irrelevant. The damages award was not based on the service of an actual s.21 notice, as no valid notice had been given.

      The general damages award is NOT intended to be punitive on the landlord. That is what the exemplary (and aggravated) damages are for. The general damages award is to compensate the evicted tenant.

      The tenant had very competent legal representation, at first instance and on appeal.

      Reply
  5. David

    Thanks for prompt reply Giles

    with respect I beg to differ

    “The damages award was not based on the service of an actual s.21 notice, as no valid notice had been given.”

    Of course it was not based on an actual S21 but you said

    “General damages at £150 per day for 60 days, that being the notice period that should have been given by a s.21 notice.”

    Thus is is based on what would have been the normal course of action, a S21 being followed, however, considering that the Landlord did not serve a legal S21 notice or anything resembling one, that he illegally evicted a tenant, etc one can conclude that had he taken the proper route of issuing a S21 it would not have gone smoothly and probably would not have been legally compliant.

    Even if he served a perfect S21 notice, you know full well that it takes far longer than the 60 days of a s21 Notice to evict a tenant, thus, had the Landlord not illegally evicted the tenant it is likely that the tenant would have enjoyed a tenancy of far more than 60 days.

    You did not give dates of when tenancy started, one assumes it was a legally binding AST (lot of fake licences in subletting), that more than 4 months and a day had passed since the creation of the tenancy, that is was the first tenancy, that the terms of the AST allowed for early termination, that such notice to quit (even if legal) would not have conflicted with a break clause or lack of break clause.

    All I am saying is that 60 days was not long enough and there are a plethora of reasons to allow longer.

    Reply
    • Giles Peaker

      David, I really, really don’t need a lecture on all the ways a s.21 can be invalid. I have even done a flow chart, which is available on the site.

      As I say in the post, I’m not sure about the 60 days in principle – as the s.21 does not terminate the right to occupy.

      But the award is on the basis of the tenancy hypothetically being terminated correctly, not whether the landlord could, in actual fact, serve a valid s.21.

      As I said, I have the first instance judgment and will be writing it up.

      Reply

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