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Housing Act 1988 ss27 and 28

Housing Law – Housing Act 1988 ss27 and 28

Court of Appeal 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.

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 an 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 owner’s inequity 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, was 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 the right to occupy, but rather for breaches of the covenant for quiet enjoyment.

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