Protection from Eviction Act 1977

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Protection from Eviction Act 1977 (civil provisions) Breach of Protection from Eviction Act 1977 s3 gives rise to the tort of breach of statutory duty (Warder v Cooper [1970] 1 All ER 1112, CA). It applies where a landlord evicts an occupier whose tenancy or licence has come to an end, without obtaining a court order. It does not apply to excluded tenancies or licences as defined by s3A, eg, where there is a resident landlord, the grant is not for money or money’s worth or the premises are a council/housing association run hostel. Furthermore, s3 does not apply to tenancies or licences that are statutorily protected, as defined by s8(1), eg, assured tenancies. Section 3 (1) provides: Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and – (a) the tenancy… has come to an end, but (b) the occupier continues to reside in the premises… it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises.’ An ‘occupier’ is any person lawfully residing in the premises at the termination of the former tenancy (s3(2)). Section s3(2B) provides that s3(1) also applies to premises occupied as a dwelling under a licence, other than an excluded licence. Section 5 prescribes that a notice to quit a non-excluded tenancy or licence must, among other requirements, be of at least 28 days. See N2.2– N2.27 for notices to quit.

Court of Appeal
O3.1 Brennan v Lambeth LBC ( 998) 0 HLR 48 , CA (see B2. )
Provision enabling residents (homeless applicants) to be moved from room to room resulted in licence; accommodation was a ‘hostel’ within PEA
1977(3A)(8) O3.2 Brillouet v Landless ( 99 ) 28 HLR 8 , CA (see B2.8)
Hotel resident does not occupy premises ‘let as a dwelling’ and PEA 1977 s3
does not apply
O3.3 Desnousse v Newham LBC [200 ] EWCA Ci 47; [200 ] QB 8 ; [200 ] WLR 49; [2007] 2 All ER 2 8; [200 ] HLR 8; [2007] LGR 8; (200 ) Times 28 June; 7 May 200
Accommodation of homeless applicant under HA 1996 s188 or s190 not ‘let as a dwelling’ Mrs Desnousse applied to Newham as a homeless person under Housing Act 1996 Part VII. After being accommodated in bed and breakfast accommodation, she was granted a licence of self-contained accommodation owned by Veni Properties Ltd and managed by Paddington Churches Housing Association on behalf of Newham. Five months later Newham decided that Mrs Desnousse was intentionally homeless and informed her that her accommodation booking would be cancelled four weeks later. When Mrs Desnousse discovered that Veni was planning to evict her summarily she obtained an interim injunction restraining Veni from evicting her without a court order. However, at trial, following Mohamed v Manek and Kensington and Chelsea RLBC (O3.5), HHJ Roberts dismissed her claim. The Court of Appeal dismissed Mrs Desnousse’s appeal (Lloyd LJ dissenting).
All three judges held that Manek was binding authority that Protection from Eviction Act 1977 s3(2B) does not apply to a licence of accommodation secured for a homeless person in discharge of its duty under s188(1) or 190(2)(a). Mrs Desnousse’s case did not fall within any of the exceptions in Manek. The accommodation was not ‘let as a dwelling’. It was not necessary to decide the position in relation to tenancies of such accommodation. Tuckey and Pill LJJ both held that, once a decision has been taken that no duty is owed, local authorities should not have to take proceedings to evict any applicant who refuses to vacate. They rejected Mrs Desnousse’s submission that a reading of Protection From Eviction Act s3 that did not allow it to extend to the recovery of possession from someone in her position was incompatible with ECHR article 8. Any eviction in these circumstances is in accordance with the law. The question is one of proportionality – whether the possibility of eviction without the procedural safeguards contained in the Act can be justified. Tuckey and Pill LJJ held that it could. Evictions are likely to be under the local
authority control. They can be trusted to act lawfully and responsibly.

O3.4 McCall v Abelesz [ 97 ] QB 8 ; [ 97 ] 2 WLR ; [ 97 ] All ER 727; ( 97 ) P&CR 2 , CA Breach of PEA s1(3) does not give rise to civil cause of action; implied covenant to supply gas and electricity
A landlord failed to pay the gas bill for the house where the claimant tenant lived and the gas board disconnected the gas supply. For a time the electricity and water supplies were also cut off. The tenant brought county court proceedings claiming damages solely under Rent Act 1965 s30(2) (the precursor of Protection from Eviction Act 1977 s1(3), unlawful harassment. The Court of Appeal held that s30(2) did not give rise to a civil remedy for damages for harassment in addition to imposing a criminal sanction. The tenant should have sued for breach of the implied covenant to supply gas and electricity and the covenant for quiet enjoyment.

Mohamed v Manek and Kensington and Chelsea RLBC ( 99 ) 27 HLR 4 9; ( 99 ) 94 LGR 2 , CA Temporary accommodation of homeless applicants not covered by PEA 1977 A homeless applicant was booked into Mr Manek’s hotel by the council pending enquiries into his application. Three days later the council notified the applicant of its decision that he was not in priority need and that
O3 Protection from Eviction Act 1977 (civil provisions)  his booking was terminated. It was made clear that the applicant would be excluded from the hotel and he applied for an injunction to prevent either the hotelier or the council from evicting him without a court order obtained in proceedings for possession (Protection from Eviction Act 1977 s3(2B)). Allowing the council’s appeal against an injunction granted in the county court, the Court of Appeal held that (a) the 1977 Act was not intended to apply to temporary housing provided by local authorities under Housing Act 1985 s63 (now Housing Act 1996 s188) and (b) temporary accommodation in a hotel or hostel could not be ‘premises occupied as a dwelling under a licence’ for the purposes of s3(2B).
National Trust for Places of Historic Interest v Knipe [ 997] 4 All ER 27; ( 998) 0 HLR 449; [ 997] 2 EGLR 9, CA (see N2. ) Agricultural holding not ‘let as a dwelling’ and PEA 1977 s5 did not apply
Pirabakaran v Patel [200 ] EWCA Ci 8 ; [200 ] WLR 2; [200 ] All ER 0 ; [200 ] HLR 9; [200 ] L&TR 24; (200 ) Times 9 July; 2 May 200
Mixed residential/business premises covered by PEA 1977 s2 The claimant landlords let premises which comprised a shop on the ground floor and a residential flat on the first floor to Mr Pirabakaran. He lived in the flat. He fell into arrears and the landlords exercised their right of re-entry to forfeit the lease by taking possession of the shop premises. Mr Pirabakaran continued to live in the flat and so the landlords began possession proceedings, claiming that as a result of their re-entry, the lease had become forfeit. Later the landlords excluded Mr Pirabakaran from the flat. He issued a claim for an injunction against the landlord, relying on Protection from Eviction Act 1977 s2 and claiming that the purported forfeiture of the lease was unlawful. HHJ Oppenheimer found that the demised premises were not let ‘as a dwelling’, that accordingly the landlords were not constrained by s2 and that therefore the lease had been lawfully forfeited.
The Court of Appeal allowed an appeal. After extensive consideration of the Rent Acts and the effect of the Protection from Eviction Act s8, it held that the phrase ‘let as a dwelling’ in s2 means ‘let wholly or partly as a dwelling’. It therefore applies to premises which are let for mixed residential and business purposes. Furthermore, ECHR article 8 supports this interpretation.

Sumeghova v McMahon [2002] EWCA Ci 8 ; [200 ] HLR 2 ; (2002) Times No ember Excluded tenancy where landlord shared accommodation temporarily with tenant The defendant granted the claimant tenant a tenancy of a room in a house in April 1998. In August 1998 he informed the tenant that he needed her to vacate the room on 9 September 1998. On 18 September 1998 he evicted
her and threw her belongings on to the pavement outside. In a claim for unlawful eviction, the defendant maintained that he had lived in the same house as the tenant throughout the period of her tenancy, using one room as a living room and another room as a bedroom. His defence was that the tenancy was an excluded tenancy under Protection from Eviction Act 1977 s3A(2) because the tenant had shared accommodation with him and, immediately before the tenancy was granted and at the time it came to an end, he occupied part of those premises as his only or principal home.
Recorder Hurst found that although the accommodation was shared both immediately before the tenancy was granted and at the time it came to an end, this was a ‘temporary arrangement’ and that the landlord’s principal residence was in the house next door. As a result the tenancy was not an excluded tenancy. The defendant appealed, complaining that the judge had made no finding as to when he started to sleep in the premises. The Court of Appeal allowed the defendant’s appeal. The defendant was using the premises as his only or principal home in April and September
even though it may have been a temporary arrangement. The place where a person sleeps is of the utmost importance. Circumstances may well arise where that would not be a decisive factor but it is a matter which would influence any court considerably. Having rejected the judge’s finding in relation to the ‘temporary arrangement’ on which he had relied, it was necessary for the court to consider whether the property was the defendant’s only or principal home in April and September 1998. In the circumstances, it was clear that it was his only or principal home and that the tenancy was therefore excluded.

High Court O3.9 Polarpark Enterprises Inc v Allason
[2007] EWHC (Ch) 088; (2007) Times 2 June; 8 April 2007 (see M .9) Licence was for money’s worth where licensee was to keep the premises repaired and insured; possession order could only be enforced in the county court

Rogerson v Wigan MBC [2004] EWHC (QB) 77; [200 ] HLR 0; [200 ] LGR 49 Licence in council-run hostel excluded under PEA 1977 s3A; accommodation provided to a homeless applicant which is no longer referable to the temporary accommodation duty is ‘a dwelling’ for the purposes of s3 In November 2002 the council accepted that it owed the claimant a duty to provide interim accommodation under Housing Act 1996 s188 pending a decision on his homelessness application. It placed him and his partner in a room in its ‘hostel’ for the homeless. This was not a purpose-built hostel but a building constructed as a block of flats. There were seven twobedroom flats, a single-bedroomed flat and a warden’s flat on the ground floor. Each flat contained bedrooms as well as a living room, kitchen and bathroom. Residents were allocated bedrooms (with their own locks) but shared the facilities of the flat with other residents. The terms of occupation included a nightly curfew, a prohibition on alcohol and drugs and a facility enabling the occupier to be required to move from one flat or bedroom to another. The warden had a master key for all the flats and
bedrooms. The licence agreement provided for seven days’ notice. The Protection from Eviction Act 1977 (civil provisions) day after the claimant moved in, the council accepted that it owed him the full housing duty (Housing Act 1996 s193). He remained in occupation of the hostel. On 17 February 2003 he was evicted on the expiry of ten days’ notice given by the council following an investigation into alleged breach of the licence conditions. He asserted that the Protection from Eviction Act 1977 required the council to give a minimum of four weeks’ notice (s5) and to obtain a court order for possession (s3). He brought a claim for damages for unlawful eviction. The council contended that either: (1) the licence of the hostel accommodation was expressly excluded from protection by s3A(8) or; (2) the premises did not constitute a ‘dwelling’ protected by ss3 and 5 because they had only been provided as stop-gap housing for a homeless person (see Mohamed v Manek and Kensington and Chelsea RLBC (O3.5). HHJ McMillan accepted both of the council’s defences and dismissed the claim. On appeal, Elias J held that the hostel met the statutory definition of a hostel in Housing Act 1985 s622 in that it provided residential accommodation with facilities for preparation of food ‘otherwise than in separate or self-contained sets of premises’. The sharing requirement in the licence agreement prevented the accommodation occupied by the claimant from being ‘separate’. The claimant’s own bedroom did not amount to separate ‘residential accommodation’ and although the flats were selfcontained it was ‘not appropriate to describe someone as being in separate accommodation if they are being compelled to share some of the facilities with someone they have not chosen’ [26]. Because the hostel was provided by the council, the licence was excluded from protection by s3A(8) and there had not been an unlawful eviction. However, if the premises had not been a council-provided hostel, the licence would not have been excluded. Although premises provided as short-term interim accommodation do not
normally count as a ‘dwelling’ for the purposes of that Act (see Manek), that judicial exception to the scope of the Act was strictly limited in time. Elias J said that ‘if the Council permits the occupier to remain in the premises for a period which is no longer reasonably referable to the decision to accommodate him temporarily pending the decision as to whether there is a duty to house him, then Manek is no longer applicable’ [33]. On the facts, by the date of notice in February 2003 the premises had become the claimant’s ‘dwelling’ for PEA purposes.

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