Wilson v Wilson & Anor (2023) EW Misc 5 (CC)

A county court judgment on a claim under section 27 Housing Act 1988 for unlawful deprivation of occupation, against a background of breakdown in relations between a family. The key issue being the residential status of the claimant where she was, admittedly, absent from the property. There was also a claim in proprietary estoppel.

Brief background:

The Claimant is the mother of the first Defendant. The second Defendant is the first Defendant’s wife. The case concerns residential property at 32 George Lane, Notton, Wakefield (“the Property”). The Property is next-door to the Defendants’ home at No.34. It was bought by the Defendants in 2008 in a derelict and uninhabitable condition. The Claimant moved into the Property in December 2009 following a promise made by the Defendants that she could occupy the Property on a rent-free basis for life. Prior to moving into the Property the Claimant, together with Eileen Marchant (“Eileen”), jointly owned and occupied 25 Far View Crescent, Huddersfield. The Claimant lived at the Property until September 2018 when she moved to 38 The Cedars, a property owned by her daughter, Tamarind Wilson-Flint (“Tamarind”).

The promise that the claimant could occupy rent free for life was on the basis that she would pay for the renovation of the property. (The defendants disputed this, saying that any sums the clamant had expended on the property were voluntary on her part. There was nothing in writing.)

The claimant had moved a proportion of her belongings – two removal vans worth – but left other belongings at the property. She continued to pay the bills. She also told the defendants, through her solicitors, that she intended to return.

In Feb/March 2019, the defendants changed the locks to the property and, through their solicitors, told the claimant that they had taken possession and she must remove her remaining belongings.

The claimant brought the present claim. By this point, her stated view was that she no longer wished to return to the property.

On the section 27 Housing Act 1988 claim:

Section 27

applies where a ‘landlord’ unlawfully deprives a ‘residential occupier’ of her occupation of premises, or where the landlord attempts to do so, or where he undertakes acts “likely to interfere with the peace and comfort of the residential occupier”, in circumstances where he knew or had “reasonable cause to believe” that doing so would either cause the occupier to give up occupation or “refrain from exercising any right or pursuing any remedy in respect of the premises.” …See section 27 (1) and (2) of the 1988 Act).

It appears to have been largely common ground, (perhaps surprisingly), that the defendants were the ‘landlord’ and that the claimant was a residential occupier as “a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation“, at least prior to moving out in September 2018.

The issue was whether the claimant remained the residential occupier after September 2018.

As per Schon v London Borough of Camden (1986) 18 HLR 341, the test for being a residential occupier was the same as under Rent Act 1977.

“there is a long line of authority for the proposition that under the Rent Acts, a person may occupy premises as his residence although he is physically absent from the premises, provided that, to put it broadly, the absence is not, and is not intended to be, permanent and either his spouse or some other member of his family is physically in occupation or, at the very least, his furniture and belongings remain in the premises. Thus, to give an easy example, if a statutory tenant of the premises goes away on holiday for a month and leaves his premises empty, but with all his furniture and belongings there, he continues to be a residential occupier. He continues to occupy the premises as his residence. If he goes on a business trip for a long time, the same is true. It becomes a question of fact for the court, in the particular circumstances, as to when or what particular events constitute a cessation of occupation as a resident.”

The question was therefore whether the claimant’s absence from the property was permanent or temporary.

There were outward signs of her intention to return by way of belonging left in the property.

There was evidence, including from the claimant’s former bank manager, that her stated intention at the time was to return to the property once her sciatica had improved, and that she had moved to have support available from her daughter in the meantime.

The claimant had also made it clear to the defendants through her solicitors in October 2018 that she intended to return.

The defendants had relied on selected elements of emails and the removal of a large part of the claimant’s belongings, but overall it was clear that the claimant had evidenced an intention to return at the time. The defendants had apparently convinced themselves that the claimant had ceased to occupy, but did not have a reasonable basis for reaching that view, so had ‘reasonable cause to believe’ their actions would unlawfully deprive the claimant of occupation.

On damages under section 28.

The measure for damages under section 28 was the difference between the value of the property without the occupier and with the occupier in occupation. Here, that would be occupation for the claimant’s life.

The parties’ experts had taken different approaches, however, the approach of the claimant’s expert was preferred as it was actually explained as a method. The calculation was of the value to the property to a property investor given a further 11 years (on an actuarial basis) rent free occupation by the claimant. This resulted in a diminution of value of £148,000 and these were the damages ordered under this head.

The claimants actions after the change of locks and her change in view of whether she wished to return were not relevant.

On proprietary estoppel.

The claimant had also brought a claim in proprietary estoppel, based on a breach of promise and detrimental reliance on that promise.

This was not double recovery as estoppel was not a claim in damages for loss of a right to occupy (section 27(5).

The promise of rent free occupation for life was clear. As found, that was on terms that the claimant spend her funds on renovation of the property. The claimant had done so, which was detrimental reliance. The estoppel was made out and the defendants had acted unconscionably. The question was remedy.

The most appropriate remedy would be to compel the defendants to fulfil their promise. However, the claimant did not want to return to the premises, and instead sought an award of money reflecting what she had put into the property.

The court was not convinced that there was any strong reason why the claimant could not return to the property, but would not impose a remedy not sought by the claimant and not welcomed by the defendants.

I turn first to the detriment that the Claimant has suffered. There is, first, the obvious point that homes, especially when one is settled, are unique and some ways irreplaceable. Whilst, obviously, difficult to quantify it seems to me that for this Claimant this does not represent a major consideration as she does not now wish to return to the Property.

Secondly, it was said on the Claimant’s behalf that she lost the security of mortgage-free home at 25 Far View Crescent. However, the facts do not support such a contention. On the evidence before me it was clear that the Claimant was going to leave and sell 25 Far View Crescent because she had fallen out with her co-owner, Eileen.

Thirdly, it was argued that the Claimant paid the bills at the Property during the period of her occupation. For my part, I cannot see how this would represent a detriment to her. She would have had to pay the bills (subject to her consumption) no matter where she resided.

It is clear that the core detriment that the Claimant suffered is the loss of exclusive use, for the rest of her natural life, of the Property (a property that she has spent considerable sums on). Absent being able to put the Claimant in the position that she would have been had the promise been performed we are left with an award of money calculated to put the Claimant into as good a position, as best as money can do it, as if she had not relied on the Defendants’ promise. In other words, the Claimant ought to be awarded the sums that she had put into the Property, as she would not, on the facts as I have already found them, put her money into the Property had she not been promised occupation for life at no rent. This is, essentially, the remedy advocated for by the Claimant.

The sums put forward by the claimant were not all adequately evidenced, particularly alleged cash payments, and some were clearly gifts to the first defendant, but some £73,000 was evidenced on the balance of probabilities as payments for works.

The award under estoppel was therefore £73,000

Total: £221,000. Plus, one would conjecture, costs.

Comment

The apparent lesson is be sure your mother has moved out for good before changing the locks…  A right to occupation for life is going to give rise to very substantial s.28 damages (compared to occupation by an assured shorthold tenant, say).