Housing Act 1988 ss27 and 28

new laws being introduced in 2018Housing Law – Housing Act 1988 ss27 and 28

Housing Act 1988 s27 creates a cause of action in tort against a landlord where the landlord, or anyone acting on his or her behalf, ‘unlawfully
deprives the residential occupier of any premises of his occupation of the whole or the part of the premises’ (s27(1)). The tort also applies where a
residential occupier gives up occupation of premises as a result of conduct falling short of an actual eviction (see s27(2)). A ‘residential occupier’ has the same meaning as in Protection From Eviction Act 1977 s1 (s27(9)(a)). See O10. A landlord means ‘the person who, but for the occupier’s right to
occupy, would be entitled to occupation of the premises’ (s27(9)(c)). The liability is in addition to any liability arising apart from s27 (s27(4)) but damages are not be awarded both in respect of a liability for loss of a right to occupy premises as a residence and in respect of a liability arising
under s27 (s27(5)). No liability arises if the occupier is reinstated in the premises before proceedings are finally disposed of, whether by court order or otherwise (s27(6)).
Damages can be reduced under s27(7) where: (a) the residential occupier’s conduct prior to eviction was such that it is reasonable to mitigate the damages, or (b) the residential occupier unreasonably refuses an offer of reinstatement made prior to the commencement of proceedings. It is a defence if the landlord proves that he or she believed, and had reasonable cause to believe, that the residential occupier had abandoned the premises or, in relation to s27(2), the landlord had reasonable grounds for withholding or withdrawing services (s27(8)). Section 27 is modelled on Protection from Eviction Act 1977 s1 (which creates criminal offences relating to unlawful eviction and harassment) and case-law relating to those offences may be relevant to s27 (eg, cases
concerning the constituent elements of unlawful eviction and defences

The real significance of s27 is not the scope of the cause of action, which is narrower than the covenant for quiet enjoyment (although applying to a wider class of occupant), but the way in which damages are to be assessed. Section 28 provides that the basis for the assessment of damages is the difference, at the time immediately before the residential occupier left the premises, between the value of the landlord’s interest with, and the value of the landlord’s interest without, the residential occupier in occupation. It is, therefore, essential in all cases brought under s28 to produce expert evidence from a valuer. The status of the residential occupier and the use of the rest of the landlord’s premises (if any) will be very relevant to the valuation exercise.

Court of Appeal O4.1 Abbott v Bayley (2000) 2 HLR 72 CA

Landlord liable under s27(2) although tenant not physically excluded; damages in addition to s28 damages Mr Bayley owned a two-bedroomed flat. In September 1994 he granted Mr Abbott an assured (non-shorthold) tenancy of one bedroom with shared use of the sitting room, kitchen and bathroom. At this time the other bedroom was occupied by a friend of the landlord but she moved out in November 1994. In January 1995 Mr Bayley wrote to Mr Abbott asking him to leave. The landlord purported to let the whole of the flat to two other people and in February 1995 Mr Abbott returned from holiday to find the new tenants in the flat and one of them occupying his bedroom. Mr Abbott was allowed back into his bedroom and for three months all three lived in the flat, with one of the new tenants sleeping on the sofa in the sitting room. In a telephone conversation Mr Bayley was threatening and abusive to Mr Abbott and in March 1995 Mr Bayley’s father threatened forcibly to evict Mr Abbott and his belongings. Mr Abbott could not stand the unpleasant social and physical conditions and on 2 May 1995 he left and brought a claim for damages. HHJ Green QC awarded damages of £6,750 plus interest under Housing Act 1988 s27, and £2,050 for breach of the covenant for quiet enjoyment. Mr Bayley appealed, contending that s27 only applies where ‘the seriousness of the landlord’s conduct is established to a high degree and where he makes the tenant’s position so intolerable that he is driven out of the property’. The Court of Appeal rejected that submission. The judge had been correct in finding that the landlord’s letter asking Mr Abbott to leave and unwarranted and offensive remarks in letters did not amount to acts
likely to interfere with his peace and comfort. However, the judge had also been correct in finding that the purported letting of the entire flat, including Mr Abbott’s bedroom, and the threat by Mr Bayley’s father did come within s27. Section 27 did not require a landlord’s conduct to have been of such a degree as to have made a tenant’s continued occupation intolerable. The Court of Appeal also rejected the landlord’s submission that the common-law damages were too high – in awarding such damages in addition to ss27/28 damages, the judge had considered Mr Abbott’s inconvenience and distress both in the period before and in the period after he vacated the premises and s27(5) did not preclude such an award. The appeal was dismissed.

Francis v Brown ( 998) 0 HLR 4 , CA
Intended purchaser is not a landlord for the purposes of s27(9)(c) A landlord and her daughter unlawfully evicted the plaintiff. The daughter was convicted of an offence under Protection from Eviction Act 1977 s1(2), fined and ordered to pay compensation of £2,500 and costs. The tenant brought county court proceedings for damages against both the landlord and her daughter. The judge awarded damages under ss27/28 of £40,000 against the daughter. He found that, although there was no contract for sale, it had been the intention of both defendants that the freehold interest was to be conveyed from the mother to the daughter and that, following Jones v Miah (O4.4), the daughter was the landlord within the meaning of Housing Act 1988 s27(9)(c) because she was ‘entitled to occupation of the premises’. He indicated that, if he had not awarded such damages, he would have awarded ‘aggravated damages’ against the daughter in the same sum. He awarded ‘aggravated damages’ of £40,000 against the mother. He awarded £1,500 special damages and £1,000 ‘exemplary damages’ against both defendants. The Court of Appeal allowed the daughter’s appeal.

1) The county court judge had confused aggravated damages with exemplary damages. References by the judge to aggravated damages were to be read as exemplary damages and vice versa.
2) The award of ss27/28 damages was set aside because there was no evidence that the intention to transfer the freehold had been translated into a right of occupation.
3) The judge’s indication that, if he had not awarded ss27/28 damages of £40,000, he would have awarded exemplary damages against the daughter in the same sum was criticised. In Broome v Cassell and Co [1972] AC 1027, the House of Lords held that awards of punitive damages against joint tortfeasors should reflect the lowest figure for which any of the defendants could be held liable. No exemplary damages could be awarded against the mother since she had not intended to profit from the eviction and therefore no exemplary damages could be awarded against the daughter. £40,000 was, on any view, a wholly excessive sum to award here by way of exemplary damages, even had there been no award against the mother. 4) Per Sir Iain Glidewell: Sections 27/28 provide a mechanism by which the award of damages may deprive the landlord of any increase in value of the property which has resulted from the eviction ‘… where damages have been awarded to the tenant against the landlord under sections 27 and 28, there is no place for a further award of exemplary damages against either the landlord or against the person who assisted her in the eviction…’. However, that principle does not prevent the award of aggravated damages. The total award of damages against the daughter was reduced to £2,500. Note: The type of tenancy granted to the claimant is not expressed in the judgment. The background to this case was that the mother was no longer in the UK and any award against her was unlikely to be enforceable.

Haniff v Robinson [ 99 ] QB 4 9; [ 992] WLR 87 ; [ 99 ] All ER 8 ; ( 994) 2 HLR 8 , CA
Section 27 applied where eviction took place following possession order but without using court bailiffs; £26,000 damages awarded under ss27/28 to protected tenant

Jones v Miah ( 992) 24 HLR 78; [ 992] 2 EGLR 0, CA
Purchasers let into occupation prior to completion were ‘landlords’ Two tenants were ‘brutally evicted’ on 18 October 1988, not by the owners of the property but by purchasers of a leasehold term, who were let into occupation as licensees before completion of the sale. The tenants brought proceedings under s27 for damages against the purchasers. The Court of Appeal held that the purchasers came within the definition of ‘landlord’ in s27(9)(c). They became the owners in equity of the leasehold term when they entered into the contract to purchase it and, pursuant to a provision in the contract under condition 8 of the National Conditions of Sale, were let into occupation by the vendors before completion. The court rejected a submission made on behalf of the defendants that ss27 and 28 are criminal in nature and that, since the sections operated retrospectively, they were void under EEC law. (The Act received royal assent on 15 November 1988, but ss27 and 28 are expressed to take effect from 9 June 1988.) However, the damages awarded were reduced because of defects in the valuation evidence.

Kaur v Gill ( 99 ) Times June, CA
Damages other than for the loss of the right to occupy not to be set off against s28 damages HHJ Orme awarded common-law damages of £500 for breach of covenant for quiet enjoyment and £15,000 statutory damages under Housing Act 1988 ss27/28. The landlord appealed, contending that, in view of the decision of the Court of Appeal in Nwokorie v Mason (O4.9), the common-law
damages should have been set off against the statutory damages. The Court of Appeal dismissed the appeal, distinguishing Nwokorie v Mason on the basis that in Kaur the common-law damages had not been awarded for any loss of right to occupy, but rather for breaches of the covenant for quiet enjoyment.

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