Various brief notes on assorted cases, including RROs, trespass and unlawful eviction for a licensee, and nuisance by football. Oh and use of make-up artists by a party…

Pearton v Betterton Duplex Ltd (HOUSING – RENT REPAYMENT ORDER – rent paid before the start of the period when the offence was being committed) (2025) UKUT 175 (LC)

The Upper Tribunal confirms that there is no jurisdiction to make a rent repayment order for a licensing offence where the only rent paid was rent in advance, prior to the start of the tenancy.  An RRO can only be made in relation to rent paid during the period the landlord is committing the offence, which in this licensing case started with the start of the tenancy.

This is a position crying out for a swift (and simple) legislative change.

Grijns v Grijns & Ors (2025) EWHC 1413 (Ch)

An epic judgment on a son’s claim against his mother for ownership of a £3.85 million property in Chelsea that he had lived in for some 20 years, paying a very low or no rent (and receiving the rent for a basement flat). Set aside a whole evening to read it… The son’s claim was in proprietary estoppel, and in trespass from an incident where the mother and the other three sons had entered the property to allow details to be taken for the sale of the property.

The proprietary estoppel claim failed. The son was found to have at best a bare licence to occupy, which licence, the mother said, had been terminated prior to the incident.

For our purposes, it is the claim in trespass that is worth noting.

The son, Andrew, faced the problem that in common law, there can be no trespass by a licensor against a licensee by entering the property

Put shortly, at common law, Andrew has never been entitled to exclude Janice, or her invitees, from her Property and, if excluded from her Property, she was always entitled to take necessary measures to obtain access. The position, if, on 10 June 2023, Andrew was, as Janice contends, a trespasser, his licence having been lawfully terminated, would, of course, be a fortiori.

Andrew argued that sections 3(1) and 3(2)(b) Protection from Eviction Act 1977 modified that position, such that

it was unlawful and, he submits, a trespass for Janice to enforce against him Janice’s right to recover possession of the Property other than by proceedings in court.

This was not successful.

I am not persuaded that the fact that the sections in question render a self-help remedy in respect of the enforcement of a right to recover possession unlawful and, potentially, an offence under section 1 of the Act has the result that the exercise of such a remedy is a trespass. In particular, it does not seem to me that the relevant sections are intended to operate to modify the parties’ common law rights, or to vest in the relevant licensee a right of possession, as against the licensor, such as to render the unlawful exercise of the self-help remedy a trespass. Rather, it seems to me that the sections recognise the common law rights of the licensor; specifically his right to recover possession from his licensee; but renders unlawful any self-help process of enforcement.

The second and fundamental problem turns upon my findings of fact. It is essential to Andrew’s case on trespass that Janice was, when procuring entry to the Property, on 10 June 2023, doing so in order to enforce, or seek to enforce, her right of possession. It is that conduct which would be rendered unlawful by sections 3(1) and 3(2)(b) of the Act and which would, on Andrew’s case, give rise to a trespass. That, however, is not what occurred. As set out, at paragraphs 125 and 129 of this judgment, when Janice and Andrew’s three brothers went to the Property on 10 June 2023, they had no intention of evicting Andrew.

So, there was no attempt to evict without court order, even if, which it couldn’t, this could amount to a trespass.

There is also a note on reasonable period of notice to determine a bare licence. (The mother had advanced a claim in possession based upon the notice to quit.) The licence was not periodic, but the court was satisfied that a period of 4 months from NTQ to bringing of the possession counterclaim was more than sufficient reasonable notice, though in the context, the 6 week period given in the NTQ may have been inadequate.

The licence was not an ‘excluded licence’ as Andrew had, by agreement, expended money on the care and upkeep of the property, which meant that the possession claim would have to be transferred to the County Court. But mesne profits of £85,000 per year from August 2023 until delivery up of possession were ordered.

But there is much more to marvel at in the judgment, including the son, Andrew, engaging a make up artist

in order to make himself look, as he put it in an email to the theatrical agency that he has instructed, ‘very tired older and withdrawn’, presumably in an attempt to attract the sympathy of the judge at

a Financial Dispute Resolution hearing. We won’t mention the tax avoidance and the Monaco apartment.

Bakhaty & Anor v Hampshire County Council (2025) EWHC 1175 (KB)

Following the replacement of a school playing area with an all weather play area (AWPA) in 2021, adjoining the claimants’ garden, resulted in a claim in nuisance and for injunctive relief, due to noise and many footballs landing in their garden.

Initial legal letters had resulted in the school restricting the use of the AWPA to school days and hours (it had been let out to others outside of school hours), and installing a net. Nonetheless, the claimants’ issued the claim, seeking an injunction to prevent use of the AWPA altogether.

Mrs B’s evidence was

She describes the increase in, and concentration of, the noise occasioned by the construction of the AWPA as ‘immense’, accompanied by a substantial increase in the number of footballs traversing the fence (put at 170 over 11 months). Although she had once been a keen gardener, she alleges that the garden has become a ‘no go area’ due to shouting, whistling and the noise of balls hitting the weldmesh fencing. She alleges that the Claimants can no longer use either their pool or the summer house at the southeast corner of the garden. They also feel unable to hold their annual summer garden party. The position is only ‘slightly less unbearable’ since the mitigations were put in place by the school, although the number of balls coming over has reduced. As well as the garden, the noise is audible inside rooms on the school side of the house and disrupts home working. There are also complaints of stones and other objects being thrown over the fence which were in the event not pursued.

Mr C’s was similar.

Expert evidence led the court to find that noise levels from the school, with or without the AWPA, were sufficient to cause moderate annoyance.

But..

i) the construction of the AWPA was ordinary user of the land (suburban area with schools).

ii) Convenience (at least within school hours) was established, Use outside school hours was not necessary and only considered the financial interests of the school. But that use had stopped.

This analysis leads me to the following conclusions as far as the claim is nuisance is concerned:
(a) The installation and use of the AWPA does not per se give rise to actionable nuisance.

(b) Having regard to all the circumstances, the use of the AWPA by third parties outside of school hours was not done ‘conveniently’ and was therefore a nuisance to that extent.

(c) Similarly, the frequent projection of balls over the boundary from the AWPA was a nuisance.

(d) The mitigations put in place in July 2022 were such as to prevent a further actionable nuisance from arising. The occasional ball over the fence since that time (something common to many gardens), whilst annoying, is not at a sufficient level to be a substantial interference with the Claimant’s use and enjoyment of St Anns.

(e) In my judgment, use by children attending the Primary Phase during school hours (including any pre-school or after school provision) does not give rise to an actionable nuisance, provided that the net over the AWPA is maintained. There can also in my judgment be no objection to the use by the school of the area presently fenced off behind the AWPA for structured activities such as natural history lessons. Indeed, if a net was erected to prevent balls (and other objects) from crossing the boundary fence, I cannot necessarily see that there could be any real objection to opening this area up altogether.

No injunction was made. General damages for footballs into the garden were assessed at £1,000 for 10 months in 2021/22. This looks like an expensive exercise for Mr & Mrs B with only £1,000 to show over the mitigation measure already agreed and implemented by the school. But the early use by the school (out of hours income generation) was also done without regard to the school’s neighbours.