Landlord and tenant — Housing Act 1988 sections 27 and 28 — Damages for unlawful eviction — Whether damages limited by tenant’s rights to remain in possession
On March 20
1994 the appellant landlord let to the respondent tenant a flat for a term of
six months at a rent of £75 per week. On April 16 1994, finding herself unable
to pay the rent, the tenant orally gave the landlord four weeks’ notice to
quit. The landlord then advertised the flat and on May 1 1994 showed an
interested prospective tenant around with the tenant’s consent. On May 5 the
landlord wrote to the tenant stating that as she had not paid the last two
weeks’ rent, she should leave the flat that day. Following a further visit to
the flat by the landlord, the tenant left and the landlord took possession. In
the court below the judge ordered the landlord to pay damages for unlawful
eviction under sections 27 and 28 of the Housing Act 1988 in the sum of
£11,000, being the difference between the tenanted and vacant possession value
of the flat. The landlord appealed contending that as the tenant had agreed,
prior to her eviction, to leave the flat by May 12, the damages should be
£1,500.
section 28(1) of the Housing Act 1988 is the difference between the value of
the landlord’s interest subject to the tenant’s right to occupy, as defined,
and with vacant possession. The tenant was granted an assured shorthold tenancy
for a term of six months. The landlord did act on the agreement by the tenant
to leave by May 12 by advertising the flat to let and showing it to a
prospective tenant; these factors would have estopped the tenant if she had
sought to resile from her agreement to leave the flat. Accordingly, the
tenant’s right on the date of eviction of May 6 was to occupy the flat up to,
but not beyond, May 12. The damages payable were therefore the difference, as
on May 6, between the value of the property on the assumption that the tenant
was entitled to reside until May 12 and on the assumption she had no such
right.
The following
cases are referred to in this report.
Elsden v Pick [1980] 1 WLR 898; [1980] 3 All ER 235; (1980) 40
P&CR 550; [1980] 1 EGLR 4; 254 EG 508, CA
Fenner v Blake [1900] 1 QB 426
Jones v Miah [1992] 2 EGLR 50; [1992] 33 EG 59; (1992) 24 HLR 578
Melville v Bruton [1996] TLR 191
Pittalis v Grant [1989] QB 605; [1989] 3 WLR 139; [1989] 2 All ER
622; [1989] 2 EGLR 90; [1989] 28 EG 126
Tagro v Cafane [1991] 1 WLR 379; [1991] 2 All ER 235; [1991] 1
EGLR 279, CA
Taylors
Fashions Ltd v Liverpool Victoria Trustees Co
Ltd [1982] QB 133; [1981] 2 WLR 576; [1981] 1 All ER 897 subnom Taylor
Fashions Ltd v Liverpool Victoria Friendly Society; [1979] 2 EGLR
54; (1979) 251 EG 159
Wilson v Liverpool Corporation [1971] 1 WLR 302; [1971] 1 All ER
628; (1971) 22 P&CR 282; [1971] EGD 144; 217 EG 987, CA
This was an
appeal by the defendant, Mrs Jackson (trading as Jackson Flower Co), from a
decision of Judge Walker in Halifax County Court, who had awarded damages to
the plaintiff, Miss King, in her claim under sections 27 and 28 of the Housing
Act 1988.
Stephen
Bickford-Smith (instructed by J Bodnar, of Leeds) appeared for the appellant;
Martin Westgate (instructed by Emsleys, of Leeds) represented the respondent.
Giving
judgment, MORRITT LJ said: This is an appeal of the defendant, Mrs
Jackson, brought with the leave of Schiemann LJ, from the judgment of Judge
Walker, sitting in Halifax County Court on May 21 1996. By that judgment he
awarded to the plaintiff, Miss King, £11,000 as damages for unlawful eviction
under sections 27 and 28 Housing Act 1988; in the alternative he awarded Miss
King £1,500 damages for breach of the covenant for quiet enjoyment. Mrs Jackson
does not contest the finding of liability, but she contends that the primary
award of damages is not in accordance with the Act and is excessive. She
submits that the damages should not exceed the sum of £1,500 assessed by the
judge in the alternative.
It is
convenient to start with the relevant statutory provisions which are now
contained in the Housing Act 1988. They are as follows:
Damages for
unlawful eviction
27.– (1) …
(2) This
section also applies if, at any time after 9th June 1988, a landlord (in this
section referred to as ‘the landlord in default’) or any person acting on
behalf of the landlord in default —
(a) …
(b) knowing
or having reasonable cause to believe that the conduct is likely to cause the
residential occupier of any premises —
(i) to
give up his occupation of the premises or any part thereof,
or
(ii) to
refrain from exercising any right or pursuing any remedy in respect of the
premises or any part thereof,
does acts
likely to interfere with the peace or comfort of the residential occupier or
members of his household, or persistently withdraws or withholds services
reasonably required for the occupation of the premises as a residence, and, as
a result, the residential occupier gives up his occupation of the premises as a
residence.
(3) Subject
to the following provisions of this section, where this section applies, the
landlord in default shall, by virtue of this section, be liable to pay to the
former residential occupier, in respect of his loss of the right to occupy the
premises in question as his residence, damages assessed on the basis set out in
section 28 below.
(4) Any
liability arising by virtue of subsection (3) above —
(a) shall
be in the nature of a liability in tort; and
(b) subject
to subsection (5) below, shall be in addition to any liability arising apart
from this section (whether in tort, contract or otherwise).
(5) Nothing
in this section affects the right of a residential occupier to enforce any
liability which arises apart from this section in respect of his loss of the
right to occupy premises as his residence; but damages shall not be awarded
both in respect of such a liability … arising by virtue of this section on
account of the same loss …
(7) If, in
proceedings to enforce a liability arising by virtue of subsection (3) above,
it appears to the court —
(a) that,
prior to the event which gave rise to the liability, the conduct of the former
residential occupier or any person living with him in the premises … the
landlord in default would otherwise be liable …
the court may
reduce the amount of damages which would otherwise be payable by such amount as
it thinks appropriate.
(8) …
(9) In this
section —
(a) ‘residential
occupier’, in relation to any premises, has the same meaning as in section 1 of
the 1977 Act;
(b) ‘the
right to occupy’, in relation to a residential occupier, includes any
restriction on the right of another person to recover possession of the
premises in question; …
28.–The measure of damages
(1) The basis
for the assessment of damages referred to in section 27(3) above is the
difference in value, determined as at the time immediately before the
residential occupier ceased to occupy the premises in question as his
residence, between —
(a) the
value of the interest of the landlord in default determined on the assumption
that the residential occupier continues to have the same right to occupy the
premises as before that time; and
(b) the
value of that interest determined on the assumption that the residential
occupier has ceased to have that right.
(2) In
relation to any premises, any reference in this section to the interest of the
landlord in default is a reference to his interest in the building in which the
premises in question are comprised (whether or not that building contains any
other premises) together with its curtilage.
(3) For the
purposes of the valuations referred to in subsection (1) above it shall be
assumed —
(a) that
the landlord in default is selling his interest on the open market to a willing
buyer;
(b) that
neither the residential occupier nor any member of his family wishes to buy;
and
(c) that
it is unlawful to carry out any substantial development of any of the land in
which the landlord’s interest subsists or to demolish the whole or part of any
building on that land.
(4) In this
section ‘the landlord in default’ has the same meaning as in section 27 above
and subsection (9) of that section applies in relation to this section as it
applies in relation to that.
Mrs Jackson is
the owner of 1 Westbourne Crescent, Halifax. It contains a flat on the first
floor. Mrs Jackson was accustomed to let the flat so as to be better able to
pay the interest on the mortgage she had taken out in connection with the
purchase of the whole building.
On March 20
1994 Mrs Jackson let the flat to Miss King for six months at a rent of £75 per
week payable in advance and a bond for £200. The judge recorded that the
written tenancy agreement had been lost but that ‘a copy of what it probably
was’ had been produced. That copy is a form of assured shorthold tenancy for a
term of six months.
On April 16
1994 Miss King, finding herself unable to pay the rent, orally gave to Mrs
Jackson four weeks’ notice to quit. Mrs Jackson accepted the notice
notwithstanding the informality; as the judge found, ‘both parties intended
that it should be acted on’. The week’s rent due on April 23 and 30 was not
paid. The agreed evidence before the judge indicated that subsequently, but
before May 1 1994, Mrs Jackson advertised the flat as being available to let by
putting up a card in the window of the shop. The advertisement was seen by Mr
Anthony Hegney, who was shown round the flat by Miss King, by arrangement with
Mrs Jackson, on May 1.
On May 5 Mrs
Jackson wrote to Miss King stating:
due to the
fact that you’ve not paid last two week’s rent I have to ask you to leave the
flat today, Thursday 5th May. Please telephone me with your intentions as to
your leaving and the removal of your furniture etc as I would not wish to have
to dispose of them for you.
On May 6, as
found by the judge, Mrs Jackson and a Mr Sheard wrongfully evicted Miss King.
The facts of the eviction, as described by the judge, were as follows:
The following
morning at 9.30 Mrs Jackson let herself into the flat from a connecting door
between the flat and the shop. She had no right whatsoever to do so. She could
have inspected the flat under the terms of the tenancy agreement by giving 24
hours’ notice or not less than 24 hours’ notice in writing … She shouted up the
stairs. Anita was in bed. She got up and clothed herself, went down, and it was
clear that Mrs Jackson was not pleased with the fact that the rent hadn’t been
paid and Mrs Jackson told Anita that somebody else was coming to look at the
flat that morning.
All this,
even at that point, amounted to pressure which caused considerable distress.
The pressure was exacerbated an hour and a half later when Mrs Jackson brought
the gentleman (with whom she now has a relationship and who was thinking of
buying the flat) to come and have a look at it. I have not had the advantage of
seeing that gentleman or hearing from him but I have heard what he said and I
accept the evidence of the plaintiff on this. First of all he was introduced as
a prospective tenant. He was nothing of the sort … He went and looked at the
flat, said words to the effect that it was a nice little flat and he would not
mind moving in himself.
Anita was
asked when she was getting out and she said the following week. He said that he
was in a position to offer a month’s rent in advance that day. She said she was
not leaving and he said, ‘I will move in with you’. If it was a joke it was a
very bad joke but I do not think it was a joke at all. I think it was all part
of a calculated move, no doubt inducted by emotional stress on the part of Mrs
Jackson and possibly added to by bad advice given her by some friend or other,
and that emotional stress and that bad advice combined to produce acts which
were undoubtedly threatening to Anita.
She and her
boyfriend left the flat very shortly afterwards, not intending to leave
permanently but simply to get out of what was an embarrassing and hostile
situation …
I should add
that the gentleman who came out and confronted this couple in the car had said
words to the effect, ‘You can’t get back in now because it’s bolted against
you’. He was right because Mrs Jackson had bolted it against them. She says it
was because she was sneaking upstairs to read the meter and did not want to be
surprised trespassing on the plaintiff’s flat by the plaintiff returning
suddenly. I do not believe her.
She and Mr
Sheard (as it now turns out was the gentleman’s name) had bolted the door the
moment those two got out of it. They intended to bolt the door and they
intended to exclude them. The door remained bolted until Anita returned later
in the day with her stepfather in order to collect the furniture, which she did
without any trouble and she got back the balance of her bond after payment of
the arrears of rent and the electricity. She got £15 back.
The flat
having been vacated by Miss King, on May 13 1994 Mr Hegney went into possession
of it as a tenant paying a rent of £75 per week. On September 8 1994 Miss King
commenced these proceedings for damages for unlawful eviction and breach of
covenant for quiet enjoyment. The hearing on May 21 1996 before Judge Walker
was concerned primarily with the question of liability on which he found for
Miss King. Accordingly, the amount of damages for which Mrs Jackson was liable
pursuant to sections 27 and 28 Housing Act 1988 had to be assessed. The only
evidence before the judge was a letter from a firm of local valuers and estate
agents who had been instructed by the parties jointly. The instructions to the
valuers were not adduced in evidence. The letter, dated August 23 1995, gave a
full physical description of the property and then continued:
We understand
that on Friday 6th May 1994 Anita King occupied the First Floor Self Contained
flat at the rental of £75 per week … We have given careful consideration to the
value of the premises with Anita King in occupation and in our opinion the
property was worth a figure of £44,000 we believe that at the time the value of
the property with vacant possession was worth the sum of £55,000.
The judge
concluded that the measure of damages prescribed by section 27 was mandatory,
being the difference between the vacant possession and the tenanted value; the
failure to pay the rent was not a mitigating circumstance within section
27(7)(a); and that the Act required the valuation difference of £11,000 to be
the award of damages, notwithstanding the fact that Miss King had agreed to
leave in six days’ time. He indicated that if, contrary to his finding, the
case was not to be determined in accordance with sections 27 and 28 Housing Act
1988 then the award of damages should be £1,500.
Counsel for
Mrs Jackson contends that the judge was wrong. He submits that the judge
should, first, have determined what were the rights of Miss King to occupy the
flat. The alternatives, he submits, were a further six days pursuant to the
common intention of the parties, as found by the judge, a further five months
on the footing that the tenancy was an assured shorthold tenancy or a further
five months and thereafter from month to month until determined in accordance
with the Housing Act 1988, on the footing that it was an assured tenancy. He
argues that when the judge had reached a conclusion as to the rights of Miss
King he would then have to do the valuation exercise prescribed by section
28(1). On the basis that the valuation could not sensibly have applied to each
of the three alternatives he should have discounted the valuation, which
appeared to assume a long term tenancy, to arrive at a figure appropriate to
the rights of shorter duration inherent in either of the first two
alternatives. He suggests that the alternative award of £1,500 is adequate for
that purpose.
This is
disputed by counsel for Miss King. He submits that the judge must have
concluded that Miss King was an assured tenant with some security of tenure and
that Mrs Jackson is not entitled to go behind the agreed valuation and raise in
this court points dependent on further valuation evidence.
In dealing
with the question of damages the judge said:
The
submission of the plaintiff, which I am bound to accede to, is that the damages
here are mandatory. They are the statutory damages under section 27 of the
Housing Act 1988 and they represent the difference between the vacant
possession value of the property and the tenanted value of the property. That
difference is accepted by both sides as being £11,000. I say I am bound to accept
that …
The other
argument to be advanced, which has been advanced, by the defendant is that
section 27 does not apply at all because, looking at section 28 showing the
measure of damages, it is said here the plaintiff, although she got
an acceleration of her vacant possession by a matter of five days, that it was
only a five-day acceleration. The evidence was that the plaintiff intended to
leave the following week anyway. The defendant was told that she was going to
leave then and that under those circumstances there really has effectively been
no increase in the value of the landlord’s holding as a result of the
landlord’s action in causing the tenant to leave.
I do not
think that will hold water. There is no ground, it seems to me, in this Act for
degrees. The question is, was there an unlawful eviction. If yes, what is the
value of the property with the tenant out as against the value of the property
with the tenant in? The difference between those two is the measure of
statutory damages. To say that the landlord might have got possession anyway at
some future date leaves the matter completely at large. She might have got it
the following day by the tenant walking under a bus. She might have got it six
weeks or six months later as a result of possession proceedings in the county
court. She might have got it 60 years later by the tenant dying. All that is
speculation. The Act is draconian in the amount of the damages it awards and it
allows no room for manoeuvre to adjust the amount of damages looking at the
circumstances at large.
In my view,
these passages demonstrate a wrong approach. It is plain from section 28(1)
that what is to be valued is the interest of the landlord subject to the
tenant’s right to occupy, as defined, and with vacant possession. The
difference between the two is the statutory measure of damages. The exercise is
not to be performed in the abstract for the rights in question are those of Mrs
Jackson and those of Miss King. As Leggatt LJ observed in Jones v Miah
(1992) 24 HLR 578*, at p592, the measure of damages:
*Editor’s
note: Also reported at [1992] 2 EGLR 50
represents
the financial advantage which the landlord has gained … and of which it is the
purpose of sections 27 and 28 of the Act to deprive him.
Similarly, in Melville
v Bruton [1996] TLR 191 Hutchison LJ commented that the comparison
required by the statute:
necessarily
involved valuing the unincumbered interest on a factual as opposed to a
notional basis, otherwise that which the landlord was ordered to pay to the
tenant was not the value of the profit occasioned by his wrong but a fine which
might be far greater.
It is obvious
that the agreed valuation could not have applied to each of the alternative
rights of Miss King. The judge was unable to perform the statutory comparison
unless, and until, he had determined what the rights of Miss King were. Neither
party invited us to remit the case to the judge for him to make the appropriate
findings of fact; accordingly, we must do so on such evidence as is available
to us.
The first
question is whether the original tenancy was an assured shorthold tenancy or an
assured tenancy. In the case of the former the landlord is entitled to
possession on the expiration of the term; in the case of the latter the tenant
is entitled to remain in possession unless, and until, the tenancy is
terminated in accordance with section 5 Housing Act 1988. For a tenancy to be
an assured shorthold it is necessary for the prospective landlord to serve on
the prospective tenant before the tenancy is entered into a notice in the form
prescribed by section 20(2) Housing Act 1988.
In the
particulars of claim it was alleged that the tenancy was an assured tenancy.
This allegation was admitted in the defence; but in her witness statement, to
which no objection was taken, Mrs Jackson stated that the tenancy was an
assured shorthold tenancy, though she could not remember serving the requisite
notice on Miss King. Miss King said nothing about a notice, but described how
they filled in the blanks in a form produced by a solicitor in Halifax. Though
the agreement was not produced, the judge accepted the evidence that its terms
were the same as those in an agreement between Mrs Jackson and a Mr Stansfield
dated September 26 1991. The documents produced in respect of that tenancy
comprise the agreement, which stated on its face that it was intended to be an
assured shorthold tenancy and pointed out the need for the service of the
notice, and a notice in the prescribed form. I infer that when the judge
indicated that though the agreement had been lost ‘we have a copy of what it
probably was’, he was accepting that it had been intended that the tenancy
should be an assured shorthold and that the requisite notice had been served at
the time when, as Miss King described, the blanks were being filled in. At all
events, that is the inference I draw. Accordingly, in my judgment, the tenancy
when granted was an assured shorthold for a term of six months.
The next issue
is what was the effect, if any, on Miss King’s ‘right to occupy’ the flat of
the conversation on April 16 1994 and its aftermath. In the amended particulars
of claim, Miss King asserted that she ‘therefore gave 4 weeks notice to [Mrs
Jackson] that she would have to surrender the tenancy. [Mrs Jackson] accepted
the surrender, which was due to expire on 14th May 1994.’ In the defence it was
admitted that Miss King surrendered the tenancy as alleged in the particulars
of claim. In his judgment, the judge referred to this conversation as giving
rise to an oral notice to quit both parties intended should be acted on.
Before us
counsel for Mrs Jackson accepted that the legal consequence of the conversation
could not be an actual surrender for it was not immediate, nor effected by the
deed necessary for an express surrender or the delivery of possession needed
for a surrender by implication of law. He also accepted that it was not a valid
contract for a surrender because it was not in writing as required by the Law
of Property (Miscellaneous Provisions) Act 1989 section 2. Further, he conceded
that it could not operate as a notice to quit because the terms of an assured
shorthold tenancy do not admit of the service of such a notice during the term.
He submitted that the facts demonstrated a waiver or an estoppel such that on
May 6 Miss King was not entitled to resile from her agreement to leave on or
before May 12. Such a waiver or estoppel, if made out, would qualify Miss King’s
right to occupy the flat to that extent. Counsel relied on Fenner v Blake
[1900] 1 QB 426; Elsden v Pick [1980] 1 WLR 898* and Taylors
Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133† as
demonstrating the availability in this field of waivers and estoppels arising
from agreements or common assumptions precluding a tenant from relying on the
terms of the written tenancy.
*Editor’s
note: Also reported at [1980] 1 EGLR 4
†Editor’s
note: Also reported at sub nom Taylor Fashions Ltd v Liverpool
Victoria Friendly Society [1979] 2 EGLR 54
Counsel for
Miss King did not dispute the possibility as a matter of law of a waiver or an
estoppel qualifying the rights of the tenant to continue in occupation. Rather,
he contended that on the facts there was no or no sufficient reliance on or
change of position in consequence of the agreement or common assumption found
by the judge for the creation of a waiver or estoppel.
The relevant
time is immediately before Miss King was unlawfully evicted on May 6. At that
time there was and had since April 14 been an agreement between Mrs Jackson and
Miss King that the latter would vacate the flat on or before May 12. The judge
rejected the evidence of Mrs Jackson and Mr Sheard that the latter was a
prospective tenant. But he did not deal at all with the evidence of Mr Hegney.
This was not disputed and was to the effect that he had seen the advertisement
of Mrs Jackson and had made an arrangement, through Mrs Jackson, for Miss King
to show him round the flat on May 1. Mr Hegney subsequently took a tenancy of
the flat at the same rent previously paid by Miss King and moved in on May 13.
This evidence must be placed in the context, as found by the judge, that what Mrs
Jackson really wanted was the rent regularly paid because she needed some cash
in order to pay the building society who had a mortgage on the property.
In my view, it
is clear that Mrs Jackson did, before May 6, act in reliance on the agreement
between her and Miss King that the latter would vacate the flat on or before
May 12, first, by advertising its availability for renting and, second, by
making arrangements for Mr Hegney to view it. Further, I consider that it is
reasonable to infer that, but for the agreement of Miss King to leave early,
Mrs Jackson would, before May 6, have started to take such lawful steps as were
open to her to recover the unpaid rent and possession of the flat. In my
judgment, these three factors would have been sufficient to estop Miss King if,
on May 6, she had sought to resile from her agreement with Mrs Jackson to leave
on May 12.
Accordingly,
on May 6 the right of Miss King was to occupy the flat up to, but not beyond,
May 12. Though in practice it might take longer to obtain an order for
possession there was no legal restriction on the right of Mrs Jackson to such
an order. In those circumstances the issue for the court was to ascertain the
difference, as on May 6, between the value of the property on the assumption
that Miss King was entitled to reside there until May 12 at a rent of £75 per
week and on the assumption that she had no such right.
Counsel for
Miss King submitted that it was not open to Mrs Jackson to go behind the agreed
valuation which produced a difference of £11,000. He relied on Wilson v Liverpool
Corporation [1971] 1 WLR 302; Pittalis v Grant [1989] QB 605*
and Tagro v Cafane [1991] 1 WLR 379†. In my view, none of those
cases leads to the consequence for which Miss King contends. In Wilson v
Liverpool Corporation the appellant had conducted the proceedings
below on the basis that the relevant date for the valuation for the purpose of
compulsory purchase was the date of the notice to treat. The Court of Appeal
held that the appellant was precluded from contending on appeal for any other
date. But in this case, as is apparent from the part of the judgment of the
judge which I have already quoted, Mrs Jackson did contend that the valuation
was inapplicable because there was no increase in the value of the landlord’s
interest. Pittalis v Grant is of no assistance, for that case
also was concerned with new points not taken in the court below. Tagro v
Cafane was a case of unlawful eviction. The only valuation evidence was
that produced by the tenant and such evidence was not challenged by the
landlord. The grounds of appeal included the contentions that the award of
damages was excessive and bore no relation to the loss suffered by the tenant.
As to that Lord Donaldson MR, at p387, said:
*Editor’s
note: Also reported at [1989] 2 EGLR 90
†Editor’s
note: Also reported at [1991] 1 EGLR 279
I accept that
the damages do seem to be high, but I have to warn myself against using any
knowledge that I may have gained in other ways to support that view, and I am
quite unable to say that the judge was at fault. If we were to interfere on
this ground, it could only be on the basis of sending it back for a rehearing
designed to enable [the landlord] to call valuation evidence. It is not clear
to me why he should have a second opportunity to call valuation evidence when
he had the opportunity originally and did not choose to avail himself of it.
But in this
case it is apparent from the face of the valuation that it purported to value
the property subject to a right to occupy which did not exist. It appears that
this point was taken in some form or other before the judge and was wrongly
rejected by him. I see no reason why the point with all its attendant consequences
should not be pursued by Mrs Jackson in this court.
In these
circumstances it appears to me that the appeal should be allowed for the award
of damages of £11,000 (equal to 20% of the value of the freehold with vacant
possession) for being deprived of the right to occupy a flat for six days is
manifestly wrong. The question arises what order to make in place of that made
by the judge. In her notice of appeal, Mrs Jackson claimed that the award of
damages should be nominal and not the sum of £1,500, which the judge indicated
he would award in the alternative. At the hearing she abandoned this contention
and accepted that if the appeal were allowed, then the judgment in favour of
Miss King should be for £1,500. The basis for that award was the breach of the
covenant for quiet enjoyment, which the unlawful eviction necessarily involved.
Section 27(5)
Housing Act 1988 precludes the recovery of damages for both breach of the
covenant for quiet enjoyment and for unlawful eviction on account of the same
loss. If judgment is entered for £1,500, the question of the statutory measure
of damages will not arise and the absence of proper valuations will be
immaterial. In my view, such an award would do substantial justice between the
parties. In all these circumstances I would allow the appeal, and substitute
for the judgment for Miss King in the sum of £11,000 a judgment in her favour
for £1,500.
Agreeing, PILL
LJ said: I agree that the appeal should be allowed on the basis stated by
Morritt LJ. The judge made findings of fact that on May 6 1994, the date of the
wrongful eviction, Miss King intended to leave the premises within a matter of
days. The judge stated:
it became
apparent to her that she was not going to be able to keep the rent up and she
gave an oral notice to quit [that is on 10 April 1994]. It was not a valid
notice to quit but both parties intended that it should be acted upon. The
landlord expected her to go in a month, which was what the tenancy agreement
provided for, (four weeks) and Anita herself intended to go in four weeks. Her
evidence was not wholly consistent because at one point she said she was going
back to her home, having made it up with her stepfather. Later it became
apparent from her mother it was likely she was going to go to her boyfriend, but
whatever it was, she was going somewhere. She had somewhere to go and she was
not going to stay at Mrs Jackson’s.
I do not
however accept the submission of counsel for Mrs Jackson that the court should
assume that Miss King would have left within a matter of days and, without
further inquiry, conduct the valuation exercise on that basis. Counsel
described that as looking at the realities. The valuation under section
28(1)(a) of the Housing Act 1988 must include a valuation of the occupier’s
‘right to occupy’ immediately before the unlawful eviction. That is necessarily
based upon an analysis of her right, whatever her intention on that day may
have been.
On analysis,
however, her right was extremely limited. The tenancy when granted was an
assured shorthold for a term of six months. She had agreed to leave the
premises within four weeks of April 16. Mrs Jackson had acted in reliance on
that agreement. Miss King was estopped from resiling from that agreement. I
agree entirely with Morritt LJ’s analysis of the situation. The value of Miss
King’s right was extremely small, but that was because of the estoppel and not
the earlier statement of intent. Because it is the right to occupy which is to
be valued, an unenforceable statement of intent to leave the premises would not
of itself defeat a claim to substantial damages under section 28(1).
I bear in mind
that by virtue of sections 2 and 3 of the Prevention from Eviction Act 1977, it
is not lawful to enforce the right to recover possession otherwise than by proceedings
in the court. Further, the ‘right to occupy’ in section 28(1) of the 1988 Act
is defined in section 27(9) so as to include any restriction on Mrs Jackson’s
right to recover possession. Thus, the valuation should have regard to the
possibility of the passage of time, if court proceedings are necessary, before
an order for possession can be obtained.
I also agree
with Morritt LJ that Mrs Jackson is not bound, in this court, by the figure of
£11,000 in the valuer’s report, and with his substitution of the figure of
£1,500. That does substantial justice between the parties. Given the very
limited nature of Miss King’s right, it is very unlikely that a correct
application of section 28(1) would have produced a higher figure in the county
court.
Appeal allowed
with costs.
