Beware the penalties for unlawful eviction

A residential tenant has been awarded over £24,000 for unlawful eviction.

Facts

The landlord, Regency (UK) Ltdlet some flats to Heartland Property UK Ltd. Heartland sublet a flat to a tenant, Hussein Ali Hadi Albu-Swalin in 2015. The tenant reported problems with the property’s condition and Heartland served a termination notice under section 21 of the Housing Act 1988. However, the notice was invalid as it did not give the required two months’ notice. In the meantime, Regency had terminated Heartland’s own lease.

The tenant did not leave but Regency changed the locks so that the tenant and his son could not access the flat or their possessions. Regency later demanded the tenant pay £600 in order to retrieve his belongings.

The tenant brought a claim for unlawful eviction against Heartland and Regency. During the trial, Regency - on counsel’s advice - admitted that it had unlawfully evicted the tenant. The judge awarded:

• general damages at £150 a day for 60 days, being the two months notice period that should have been given
• £5,000 in special damages for loss of the tenant’s possessions
• exemplary (punitive) damages of £4,000, commenting that it was a disgraceful case involving a criminal offence where Regency had known someone was occupying the flat but sought repossession in order to re-let for a better profit
• £1,000 in aggravated damages as the tenant had received no warning and no opportunity to collect his possessions.

Total damages were therefore £19,000. But the tenant was also awarded £5,200 from Heartland due to the poor condition of the flat and an unreturned deposit.

Regency appealed on three grounds. The grounds of appeal and the decision of the court in relation to each are explained below:

Decision

• Regency claimed that the advice to admit unlawful eviction was negligent and that it should be allowed to withdraw that admission.
  • The court held that there was no proper ground to allow Regency to withdraw its admission. Because it had been made, the judge had not had to review the evidence to decide for itself whether the eviction was unlawful of not. Regency could not now expect the court to approach the matter differently. In any case there was no evidence that the advice was wrong.
• Regency claimed that the judge had erred in not applying section 27(7) of the 1988 Act (which provides a remedy for unlawful eviction)
  • The tenant had not asked for this to be considered and it was not prevented making a claim under common law grounds – which was the basis on which he had brought his claim.
• Regency argued that this was not a case in which exemplary or aggravated damages should have been awarded, and the amount of damages was too high.
• The court disagreed. It found the case and amount for general and aggravated damages to be satisfactory. As to special damages, Regency had disputed the value of some possessions but had not asked the tenant for any evidence of loss. The £5000 awarded was significantly lower than the amount claimed and whilst the judge’s approach had been broad-brush, there was no basis for changing that award. As to exemplary damages, the judge had considered the appropriate guideline cases to arrive at the figure of £4,000 and he was entitled to draw the inference he did that the eviction had been made for financial reasons.

Comment

This case serves as a warning to landlords who do not follow the correct process for evicting tenants. Under the Protection from Eviction Act 1977 a court order is always required for evicting residential tenants.

The landlord should have served a valid section 21 notice and then issued proceedings for a possession order followed by a warrant to enforce it. Following the eviction, the landlord should have allowed the tenant a reasonable amount of time in which to collect his belongings.

This appears to have been an example of retaliatory eviction, with possession being sought due to the tenant having complained of the condition of the property rather than his having breached the tenancy.

Removing the ability to evict on non-fault grounds is high on the political agenda and we shall watch with interest to see whether the law is changed in this regard.

REGENCY (UK) LTD v (1) HUSSEIN ALI HADI ALBU-SWALIN (2) HEARTLAND PROPERTY LTD (2019) LTL 20/11/2019 EXTEMPORE: [2019] 11 WLUK 278