Unlawful Eviction General & Civil proceedings

Task force to catch out landlords Unlawful Eviction General & Civil proceedings

Civil proceedings An occupant who has been harassed or unlawfully evicted can rely on a number of causes of action in civil proceedings, in both contract and tort. These are outlined below. For a more detailed analysis of the law, see Arden, Carter and Dymond Quiet Enjoyment 6th edn (LAG, 2002). In order to establish what causes of action an occupant may have it will be necessary to consider their status in premises. See the earlier chapters in this book regarding security of tenure and the termination of agreements. Note that once an occupier is outside Housing Act protection the
lease/licence distinction (section B2) may not be important because protection under Protection from Eviction Act ss3 and 5 applies to licences
and tenancies. However, the covenant of quiet enjoyment strictly only applies to tenancies. Contract In contract, a claim may be brought for breach of express terms or implied terms, including the covenant of quiet enjoyment and the covenant not to derogate from grant. The covenant of quiet enjoyment is implied into every tenancy. It requires a landlord not to interfere with a tenant’s lawful possession of the premises. Anything which is an invasion of a tenant’s right to remain in possession of premises undisturbed can amount to a breach of this covenant, even if there is no direct physical interference. Tort There are a number of torts that may be of relevance. These include nuisance, trespass to land, trespass to goods, trespass to the person, deceit, intimidation and breaches of: Protection from Harassment Act 1997 s3,
Housing Act 1988 s27 (O4), Protection from Eviction Act 1977 s3 (O3). Nuisance arises where an activity or state of affairs exists on premises which unreasonably interferes with another’s use or enjoyment of land. The person affected must have a sufficient interest in the land to have a cause of action (eg, a tenant or licensee with exclusive possession). Trespass to land is caused by any unlawful entry on to land or unlawful placing of something on to land. Tenants are entitled to exclusive possession of premises let and the unauthorised entry (or failure to leave or actions outside that for which permission to enter was granted) of any person constitutes a trespass. Landlords may be liable for trespass on premises of their own tenants (see Street v Mountford (B2.4) and Borg v Rogers [1981] CAT 330 (UB)).

O2 General
House of Lords
O2.1 Southwark LBC v Mills; Southwark LBC v Tanner; Baxter v Camden LBC [200 ] AC ; [ 999] WLR 9 9; [ 999] 4 All ER 449; [2000] LGR 8; [ 999] 4 EG 79; (2000) 2 HLR 48; [2000] L&TR 9; ( 999) Times 22 October, HL (see P4.2)
Ordinary use of residential premises cannot amount to a nuisance; no breach of covenant of quiet enjoyment where sound insulation inadequate

Court of Appeal O2.2 Botu v Brent LBC (200 ) HLR , CA
Eviction pursuant to court order not rendered unlawful when order subsequently set aside Mr Botu was a secure tenant. In 1996 he was arrested and remanded in custody. On 14 July 1997, at a hearing which Mr Botu did not attend, Brent obtained an outright possession order which was then enforced. On 21 November 1997 Brent granted a new tenancy to a third party. Later Mr Botu succeeded in setting aside the possession order pursuant to CCR Ord 37 (now see CPR 39.3) and on 3 July 1998 Brent granted him a new tenancy of an alternative property. He began proceedings against Brent for damages for breach of the implied covenant for quiet enjoyment for the period from 14 July 1997 to 3 July 1998. HHJ Hornby upheld the claim in relation to the period from 21 November 1997 until 3 July 1998, but rejected the claim for the earlier period. Brent appealed against the finding of liability and Mr Botu cross-appealed against the finding that breach of covenant prior to 21 November had not been established. The Court of Appeal allowed Brent’s appeal and dismissed the cross-appeal.

Burrows v Brent LBC  and Lambeth LBC v Rogers (I2.9) were noton point. The case of Hillgate House Ltd v Expert Clothing Service and Sales Ltd [1987] 1 EGLR 65; (1987) 282 EG 715, ChD held that while an order of the court is in force it is to be obeyed, and acts done under it are lawful. Sir Nicholas Browne-Wilkinson V-C, dealing with a claim for breach of the covenant of quiet enjoyment, had decided that any interruption by the landlord acting under an order of the court had been lawful at the time it took place and could not retrospectively be made unlawful when the order was reversed on appeal. The present case was concerned with an order by a court setting aside its own earlier order. The two cases were indistinguishable. Like the landlord in Hillgate, Brent had been acting on the basis of a valid existing order of the court (see also the decision in Isaacs v Robertson [1985] AC 97). There is no distinction between orders set aside on application to the court which made them and those set aside by an appellate court.

O2.3 Cowan v Chief Constable for Avon and Somerset Constabulary [200 ] EWCA Ci 99; [2002] HLR 4 ; (200 ) Times December Police did not owe duty of care to tenant to prevent unlawful eviction Mr Cowan was an assured tenant. He received a letter from his landlord stating that he wanted him to leave. Several weeks later two men called at the property and told him that they would break his legs if he was not out of the property by 6 pm. Mr Cowan telephoned the police. Two officers called and told him to telephone again if the men returned. At about 6 pm Mr Cowan saw four men removing his belongings into the street. He called the police and the same two officers returned. The men told the police that they had bought the property and that Mr Cowan had been given notice to leave. The police advised both sides to seek legal advice and then left. Neither of the officers knew about the Protection from Eviction Act 1977. Mr Cowan brought proceedings against the chief constable General

Chapter O Harassment and illegal eviction

claiming that he was liable in negligence because the police officers failed to prevent an offence being committed. HHJ Jack dismissed the claim, finding that the officers owed no duty of care to Mr Cowan, but that if he was wrong, any duty had not been broken. The Court of Appeal dismissed Mr Cowan’s appeal. It is only if a particular responsibility towards an individual arises, establishing a sufficiently close relationship, that the police may owe a duty of care to that individual. The trial judge was entitled to make the finding of fact that the police had attended to prevent a breach of the peace. The police fulfilled that purpose. They did not assume a responsibility towards Mr Cowan to prevent his eviction. Mere presence at the scene was not sufficient to give rise to the necessary special relationship. On the facts, the police did not assume any responsibility to prevent his eviction. Accordingly they owed no duty of care to Mr Cowan.

O2.4 Guppys (Bridport) Ltd v Brookling ( 984) 4 HLR ; ( 984) 2 9 EG 84 , CA
Disruption caused by major building works amounted to nuisance The local authority served notices on the landlord of a house in multiple occupation for works to be carried out. The landlord decided to convert the house into self-contained flats and carried out major building works while two tenants remained in occupation. The works caused serious disruption to the tenants. The tenants were forced into leaving the property and were offered alternative accommodation by the local authority. The county court held that (1) the occupants were tenants (2) the facts amounted to a trespass and (3) the tenants were entitled to exemplary damages of £1,000. The Court of Appeal dismissed an appeal by the landlord. The occupants were tenants: they had been described and treated as such and it bwas very difficult for a landlord to claim later that they were no more than licensees. Whether or not the landlord’s actions amounted to trespass, there clearly was a nuisance. The interferences with the comfort of the tenants went beyond what was reasonably necessary. It was open to a tenant to sue his own landlord in nuisance. Furthermore, there was evidence which justified the award of exemplary damages: the landlord’s motive to get rid of the tenants and make a profit; the failure to find alternative accommodation or to keep to a minimum the interference with the comfort and enjoyment of the premises and the breach of an undertaking given to the county court.

See also Mira v Aylmer Square Investments Ltd (P11.15) O2.5 Haniff v Robinson [ 99 ] QB 4 9; [ 992] WLR 87 ; [ 99 ] All ER 8 ; ( 994) 2 HLR 8 , CA
Eviction without using court bailiffs after possession order obtained unlawful A landlord, relying on Rent Act 1977 Sch 15 Case 11 (returning owneroccupier), obtained a possession order while a tenant was away on holiday. The tenant applied to set aside the possession order but, before the application could be heard, the landlord evicted her. The tenant claimed damages under Housing Act 1988 ss27 and 28. The landlord contended that the eviction was lawful because he had obtained a possession order. The Court of Appeal held that a possession order made against a protected
tenant can be executed only by issuing a warrant for possession directed to the bailiff (see CCR Ord 26 r17(1)) and that to decide otherwise would have the result of depriving Rent Act 1977 s100 (the court’s power to suspend execution etc) of any value. The eviction was unlawful and the awards of damages made in the county court were upheld, namely £26,000 under ss27/28, approximately £2,000 for aggravation of post-viral fatigue syndrome from which the tenant suffered, and £700 for loss of property. Rent arrears of approximately £4,000 were set off against these damages.
Note: In R (Sacupima) v Newham LBC (T5.2) it was held that, where a court order was required to recover possession (in Sacupima, under Housing Act 1988 s5), the effect of CCR Ord 26 r17 was that an order for possession was enforceable only by warrant of possession. CCR Ord 26 r17 remains in force despite the introduction of the CPR.

Kenny v Preen [ 9 ] QB 499; [ 9 2] WLR 2 ; [ 9 2] All ER 8 4, CA
Covenant of quiet enjoyment can be breached without direct physical interference A landlord sent letters to a tenant threatening physical eviction and removal of her belongings. He called at her room repeatedly, knocked on her door and shouted threats at her. It was held that this course of action, which was a deliberate attempt to drive her out, amounted to breach of covenant for quiet enjoyment even though there was no direct physical interference with the tenant’s possession or enjoyment of the room. The landlord’s conduct had seriously interfered with her proper freedom of action in exercising her right to remain in possession undisturbed.

Khorasandjian v Bush [ 99 ] QB 727; [ 99 ] WLR 47 ; [ 99 ] All ER 9; ( 99 ) 2 HLR 92, CA Harassing telephone calls amounted to a nuisance of bare licensee The plaintiff lived with her parents. The defendant pestered her with telephone calls to her at her parents’ home. He also stole her handbag so as to have a memento to keep and was sent to prison for making threats to kill her. However, he continued to behave aggressively towards her and to pester and harass. It was held that the harassing telephone calls amounted to a nuisance because they interfered with the plaintiff’s ordinary and reasonable use of her home. The campaign of harassment was clearly intended to cause harm to the plaintiff and could be restrained quia timet (because some actionable event is likely to occur) by an injunction. Note: In Hunter v Canary Wharf Ltd (P7.3) the House of Lords held that a licensee without exclusive occupation, such as a member of a tenant’s family, did not have a sufficient interest in land to found an action in private nuisance and overruled Khorasandjian to this extent. The plaintiff could now, however, rely on Protection from Harassment Act 1997.

General
Chapter O Harassment and illegal eviction

Mafo v Adams [ 970] QB 48; [ 970] 2 WLR 72; [ 9 9] All ER 404, CA (see O9. )
Landlord can be liable in tort of deceit O2.9 McCall v Abelesz [ 97 ] QB 8 ; [ 97 ] 2 WLR ; [ 97 ] All ER 727; ( 97 ) P&CR 2 , CA
Implied covenant to supply gas and electricity

Pemberton v Southwark LBC [2000] WLR 72; [2000] All ER 924; (2000) 2 HLR 784; [2000] 2 EG ; (2000) Times 2 April, CA

A tolerated trespasser has a sufficient interest in land to claim in nuisance O2.11 Queensway Marketing Ltd v Associated Restaurants Ltd [ 988] 2 EGLR 49; [ 988] 2 EG 4 , CA
Erection of scaffolding could breach covenant of quite enjoyment It was confirmed that the erection of scaffolding round a building may amount to breach of covenant for quiet enjoyment.

Sampson v Floyd

[ 989] 2 EGLR 49; [ 989] EG 4 , CA Physical eviction not necessary for breach of covenant of quiet enjoyment The plaintiff was the lessee of a chalet and a restaurant on a complex including
a caravan park and holiday homes in Devon. The landlord refused to pay for a meal at the restaurant, ‘abused’ the tenant and there was an ‘exchange of fists’. After finding his ‘frightened wife hiding under a caravan’, the tenant left the property and recovered his possessions under police escort. The tenant issued proceedings and was awarded £11,364, which included £10,000 which he had paid for the lease, conveyancing costs and £750 for mental distress to himself and his wife. The Court of Appeal dismissed the landlord’s appeal. There was no reason to disagree with the county court judge’s conclusions. Physical eviction is not necessary to constitute breach of covenant for quiet enjoyment. The award of damages was upheld.

Sampson v Hodson-Pressinger

[ 98 ] All ER 70 ; ( 984) 2 HLR 40; ( 982) 2 EG 89 , CA Landlord liable for leasing a flat where ordinary use would cause a nuisance The plaintiff held a long lease of his flat. The freeholder then built a terrace on the flat roof above the flat. Use of the terrace by the lessee who later lived above the plaintiff caused nuisance which interfered with theplaintiff’s reasonable use and enjoyment of his premises. The plaintiff sued the successor in title to the original freeholder in nuisance. He was refused an injunction but awarded damages of £2,000. The Court of Appeal dismissed the freeholder’s appeal. The upper flat had been leased in such a condition that its ordinary use would cause nuisance to the plaintiff. The purchaser of the freehold was legally in the same position as the original landlord and was liable both in nuisance and for breach of covenant for quiet enjoyment.

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