In Brem v Murray and another [2022] EWHC 1479 (QB)); [2022] PLSCS 94, Mrs Justice Collins Rice allowed the appeal of Mr Brem (the appellant) and found that he was not responsible for the unlawful eviction of Ms Murray. The implied covenant for quiet enjoyment protects a tenant from intrusion and disturbance by their immediate landlord and those claiming under them. It does not import any positive obligation to stop others from intruding, much less an absolute obligation regardless of the practicalities.
The appellant was a hairdresser who ran his salon in the ground floor of a building in Whitmore Way, Basildon, Essex. Ms Murray was a member of his staff. On the first floor of the building was a flat owned by Mr Merchant. Mr Merchant and the appellant had an arrangement whereby the appellant could make some use of the flat and he paid a rent.
In the summer of 2016 the appellant (with the agreement of Mr Merchant) agreed with Ms Murray that she could occupy a room in the flat and use the shared facilities. She moved in with her toddler son and paid the appellant rent. The condition of the flat was poor and dangerous. Ms Murray consulted solicitors and on 5 January 2017 served a notice before action on the appellant and Mr Merchant alleging that her son had been injured by the dangerous condition of the flat. This caused Mr Merchant to “go ballistic”.
On 10 January 2017, with the assistance of three associates, he evicted Ms Murray by having the locks changed (locking out the appellant in the process) and “trashed” some of Ms Murray’s possessions. The appellant “stood by and allowed this to happen. He probably protested, but was bullied into submission.” Two weeks and various injunction applications and (largely ignored) orders passed before Ms Murray was able to get back into her room, by which time it was uninhabitable.
Ms Murray brought county court proceedings against the appellant and Mr Merchant alleging (amongst other things) breach of s3 of the Protection from Eviction Act 1977 and general damages for unlawful eviction contrary to s27 and s28 of the Housing Act 1988. The judge accepted her evidence and ordered that she should receive general damages of £5,000 (£4,000 from Mr Merchant and £1,000 from the appellant) and that the defendants were jointly and severally liable for her special damage of £19,500 and for the costs.
The appellant successfully appealed. Ms Murray had suffered a serious wrong and was entitled to fair compensation, but that should come solely from Mr Merchant. The basis of any tortious liability of the appellant had not been properly identified. It had not been correct to find that a liability arose as a result of a breach of covenant for quiet enjoyment as that implied covenant protects a tenant from acts by their landlord or persons claiming under them (Kenny v Preen [1962] 1 QB 499). An omission to act can only amount to a breach of covenant for quiet enjoyment where it is a breach of (another) positive legal duty owed to a tenant (Hafton Properties Ltd v Camp) [1995] 1 EGLR 67).
Although the county court judge thought that there was more that the appellant could (and perhaps should) have done to help Ms Murray, there was no legal obligation on him to act. The damages and costs ordered by the county court were the responsibility of Mr Merchant alone.
Elizabeth Haggerty is a barrister
