Landlord and tenant — Housing Act 1988 — Wrongful eviction — ‘A cautionary tale’ — Background of harassment — Tenant of bed-sitting-room locked out and locks changed — Offer of a key which was not real reinstatement — Room wrecked in tenant’s absence — Ex parte injunction not complied with — Quantum of damages under sections 27 and 28 of 1988 Act — Whether £31,000 too high — No ground for holding that judge below was at fault — Landlord’s appeal dismissed
was by the landlord against a decision in the county court awarding the tenant
of a bed-sitting-room £31,000 damages for unlawful eviction — The room was in a
building leased on a monthly business tenancy to the landlord, who carried on a
second-hand furniture business on the ground floor — The upper floors were let
in rooms — There had been an unpleasant history of harassment of the tenant,
culminating one day in her finding herself locked out of her room and the locks
changed — Next day she obtained an ex parte mandatory injunction, which was
renewed when the landlord failed to comply with it — Some days later the
landlord offered the tenant a key, but when she returned to the building she
found the front door lock broken and her own room in chaos, with some of her
belongings stolen — Despite the authority of her mandatory injunction she
decided not to risk a return to the premises; she was afraid of the landlord
and his agent — The landlord’s suggestion that the chaos and wreckage were due
to a burglary was not accepted by the judge, who took the view that there was a
determination to ensure that the tenant did not return — The county court
pleadings were amended to include a claim by the tenant under sections 27 and
28 of the Housing Act 1988 — The judge awarded her damages of £31,000, from
which judgment the landlord appealed — There was no appeal from an additional
sum of £15,588.28 damages for trespass to the tenant’s personal belongings, for
which judgment was given against the landlord and his agent
question of liability was concerned, the Court of Appeal was satisfied that the
landlord was liable under section 27 of the 1988 Act — The court rejected a
defence that the tenant had been reinstated within the meaning of section
27(6)(a) — It was not reinstatement to give the tenant a key to a lock which
did not work, inviting her to resume occupation of a room which had been
totally wrecked — The court also rejected a submission that the tenant had no
right to choose whether to accept an offer of reinstatement — The court also
found no effective ground of defence under section 27(7)
decision on the quantum of damages, which he put at £31,000, was also
criticised on behalf of the landlord — The amount had been based on a valuation
by the tenant’s surveyor, who had subtracted the value of the landlord’s
leasehold interest subject to the tenant’s occupation (£44,000) from the value
of the interest with vacant possession (£75,000), the difference being the
£31,000 awarded — No evidence had been called to dispute these figures — The
landlord had not been represented below — The criticism in the Court of Appeal
was therefore confined to suggestions that no reasonable judge could have
accepted the tenant’s figures and that the judge had failed to appreciate that
the landlord’s interest was only a monthly tenancy — The first of these
suggestions did not stand up and the second overlooked the possible durability
of the landlord’s tenancy under the Landlord and Tenant Act 1954 — The damages
of £31,000 might seem high but in the absence of evidence there were no grounds
for saying that the judge was at fault — The court did not think that the case
should be sent back to give the landlord a second chance to call valuation
evidence which he did not choose to present the first time — Landlord’s appeal
dismissed
No cases are
referred to in this report.
This was an
appeal by the landlord, John Cafane, from the decision of Judge Simpson, at
Lambeth County Court, awarding £31,000 damages to the respondent (the plaintiff
below), Miss Aurelie Tagro, for unlawful eviction from her first-floor front
bed-sitting-room in premises at 116 Landor Road, Stockwell, London SW9. Mr
Cafane’s agent, Mr Patel, who was the second defendant below, did not take part
in the appeal.
Robert
Carnwath QC and William Geldart (instructed by John Gittens & Co) appeared
on behalf of the appellant; David Neuberger QC and Hugh Jackson (instructed by
Anthony Gold Lerman & Muirhead) represented the respondent.
Giving
judgment, LORD DONALDSON OF LYMINGTON MR said: This appeal is a
cautionary tale for landlords who are minded unlawfully to evict their tenants
by harassment or other means.
The facts are
these. Miss Tagro was the residential tenant of a first floor front-room in
premises at 116 Landor Road, Stockwell, London SW9. That was a bed-sitting-room
and she had the use of the kitchen, bathroom and toilet jointly with the
occupier of another room on that floor. Mr Cafane was Miss Tagro’s landlord. He
was the tenant of the whole building, the ground floor of which was used for
his second-hand furniture business. The first floor, to which I have already
referred, was used to provide these two bed-sitting-rooms, and there was a
second floor which was similar to the first floor. The freehold owner of the
premises was Lambeth London Borough Council and they had let the whole premises
to Mr Cafane on a tenancy, which was determinable on one month’s notice,
subject always, of course, to the effect of the Landlord and Tenant Act 1954.
Mr Cafane
appeals against a judgment of His Honour Judge Simpson, given in the Lambeth
County Court on November 24 1989, whereby he awarded £31,000 damages to Miss
Tagro for unlawful eviction, those damages being claimed by her under sections
27 and 28 of the relatively new Housing Act of 1988. In addition, he awarded
her £15,588.28 damages for trespass to her personal belongings which were on
the premises. This latter judgment was also given against the second defendant,
a Mr Patel, who was the agent of Mr Cafane. Mr Patel does not appeal in respect
of that part of the judgment, nor does Mr Cafane. The appeal is limited to the
judgment for £31,000, which was solely against Mr Cafane because he alone was
the landlord.
The defendants
were not represented below, but we have been greatly assisted by the fact that
Mr Cafane has been represented in this court by Mr Robert Carnwath QC and Mr
William Geldart, who have put in an admirable skeleton argument which, of
course, Mr Carnwath has supplemented orally.
The further
facts are these. It was in August 1989 that war really broke out, but some
mention should be made of the previous history because it obviously affected
the reaction of the tenant. For example, on one occasion she had been woken up
at two o’clock in the morning with a demand for rent. There was some dispute as
to whether the rent was due, but it really does not matter because two o’clock
in the morning is not a time at which any landlord is entitled to demand rent
from his tenant or even remind the tenant that rent is due. On another occasion
there was even more outrageous conduct. Miss Tagro was visiting the lavatory,
which was situated in the bathroom, and the landlord, or somebody on his
behalf, came and kicked the door down. She complained previously of having been
referred to as a black bastard and of loud music being used to disturb her
enjoyment of the flat and so on. That was the background.
On August 3
she returned to the room to find herself locked out and the locks changed.
There has been no challenge in this court, and there could not be any serious
challenge, to the fact that the locks were changed with the intention of
evicting her. There was some suggestion at one stage that a number of keys had
been floating around and got into the possession of various other people and
that the lock was changed for security purposes. The judge rejected that on his
assessment of the evidence in view of the fact that it was some days later
before Miss Tagro was ever offered a key which actually fitted the lock.
Faced with
that situation, on August 4, the next day, she obtained an ex parte injunction
to readmit her to the premises and allow her access to her belongings. That
injunction was very properly for a limited period, being given ex parte,
and it came up for renewal on August 7, when it was continued, Mr Cafane having
taken no step whatever to comply with it in the meantime. The application to
continue the injunction was coupled with an application to commit for contempt
of court.
On August 8 or
9 — it matters not which — Mr Cafane relented to the extent that he offered
Miss Tagro a key. Her evidence about this I can take from her affidavit:
I collected
the key late morning on Wednesday August 9 1989 in the office of Messrs Mohabir
& Co and went to the building. The lock to the front door was broken and,
in fact, I did not need the key to enter. I went upstairs to the premises.
Everything inside was in chaos. Many things were broken. A large amount of my
belongings were stolen. On the advice of my solicitor I called the police, who
arrived, then had to leave on an emergency call. They said they would be back
to take fingerprints and that I should not touch anything shiny or any door or
wardrobe or handle until they were able to return which at the time of swearing
this affidavit they have not done although I have been reminding them. In the
late afternoon my solicitor’s surveyor arrived to take photographs and draw up
a schedule of broken items.
Later in her
affidavit, she stated:
I did not
sleep at the premises on the night of Wednesday August 9 1989. This was partly
because the police told me not to touch any of the objects in the premises
including everything which was shiny and partly because the lock to the front
of the building was damaged and would not ‘lock’, leaving me with greatly
reduced security. The main reason however was that I had by then become too
frightened of the defendants. I have not returned to the premises to sleep and
do not intend to do so. After the recent events outlined above I cannot
conceive of returning to the premises.
I would add
that the state of the premises to which Miss Tagro swore in her affidavit was
attributed by the landlord to the fact that there had been a burglary. The
learned judge wholly rejected the suggestion that there had been a burglary. It
is perhaps inherently unlikely that there was one, in that the damage done to
the flat was not the sort of damage that one would expect from a burglar who
was intent upon removing goods. Such an intruder does not smash the goods and
the flat itself. Any judge would be entitled to take judicial notice that that
was an unusual way of proceeding. At all events, the judge clearly formed the
view that this so-called burglary never took place and that what had happened
was that, having locked Miss Tagro out, Mr Cafane or those acting on his behalf
were determined to make certain that under no circumstance would she be
prepared to return even if they were eventually obliged to let her in again as
a result of the court order; and of course, they were brilliantly successful.
One other date
needs to be mentioned because it is relevant to Mr Carnwath’s arguments and
that is August 25 1989. The proceedings originally were in support of the ex
parte injunction and claimed an injunction ordering the defendants to
readmit the plaintiff to the building and premises forthwith and to deliver
keys to the building to the plaintiff and further restraining the defendants,
their servants or agents or otherwise from further interfering with the
plaintiff’s quiet enjoyment of the premises and from further interfering with
the plaintiff and from further trespassing on the premises or the plaintiff’s
goods and for damages. There was no claim under, or for damages under, section
27 of the Housing Act 1988. That claim was introduced by fairly extensive
amendment on August 25 1989.
As I have
already made clear, this is a claim under the Housing Act and the defences
raised also arise under that Act. The principal defences arise under section
27(6)(b) and section 27(7)(b) of the Act.
for unlawful eviction’ and provides:
(1) This section 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 unlawfully
deprives the residential occupier of any premises of his occupation of the
whole or part of the premises.
I do not think
I need refer to subsection (2) save to say that it provides for similar
treatment where there is what might be described as constructive eviction of
the residential occupier as contrasted with an actual eviction, namely conduct
which is such that the occupier cannot reasonably be expected to remain,
although physically he or she could remain, and the occupier accordingly gives
up his occupation of the premises. The subsections continue:
(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
and in respect of a liability arising by virtue of this section on account of
the same loss.
(6) No liability shall arise by virtue of
subsection (3) above if —
(a) before the date on which proceedings to
enforce the liability are finally disposed of, the former residential occupier
is reinstated in the premises in question in such circumstances that he becomes
again the residential occupier of them; or
(b) at the request of the former residential
occupier, a court makes an order (whether in the nature of an injunction or
otherwise) as a result of which he is reinstated as mentioned in paragraph (a)
above;
and, for the
purposes of paragraph (a) above, proceedings to enforce a liability are finally
disposed of on the earliest date by which the proceedings (including any
proceedings on or in consequence of an appeal) have been determined and any
time for appealing or further appealing has expired, except that if any appeal
is abandoned, the proceedings shall be taken to be disposed of on the date of
the abandonment.
I will come to
subsection (7) in a moment. I would like first of all to deal with the argument
on subsection (6).
Before doing
so I ought to mention that in subsection (9) ”residential occupier’, in
relation to any premises, has the same meaning as in section 1 of the 1977
Act’, that is to say the Protection from Eviction Act 1977, which in subsection
1(1) provides:
In this
section ‘residential occupier’, in relation to any premises, means a person
occupying the premises as a residence, whether under a contract or by virtue of
any enactment or rule of law giving him the right to remain in occupation or
restricting the right of any other person to recover possession of the
premises.
There is no
dispute, of course, that Miss Tagro was a residential occupier, and immediately
after August 3 she was a former residential occupier.
Mr Carnwath
says in relation to subsection (6) that, in the case of Miss Tagro, the court
made an order as a result of which she was reinstated as mentioned in para (a),
that is to say she was reinstated in the premises in question in such
circumstances that she again became the residential occupier of them. He says
it cannot seriously be suggested that a tenant who has been unlawfully evicted
and who the landlord is able and willing to reinstate simply has an option whether
to accept reinstatement or not.
There are two
quite separate questions there. As to the first — was Miss Tagro actually
reinstated? — for my part I have no
doubt or hesitation in saying that she was not and could not be at that stage.
Reinstatement does not consist in merely handing the tenant a key to a lock
which does not work and inviting her to resume occupation of a room which has
been totally wrecked. Therefore, on the facts of this case, that is an argument
which simply does not run.
On the question
of whether the tenant has a right to choose whether to accept the offer,
subject to a point which arises under a later subsection, I think, for my part,
that the tenant has. Mr Carnwath says that cannot be right because it means to
say that a tenant who is unlawfully evicted, perhaps for a relatively short
period, is able to achieve some enormous financial reward which is only
available to him if he does not accept the offer of reinstatement. There is, of
course, a good deal to be said for Mr Carnwath’s argument, as there always is
for Mr Carnwath’s arguments, but there is no indication in the statute that the
tenant does not have that choice. It is difficult to see how you can reinstate
a tenant who does not wish to be reinstated. The apparent intention of
Parliament is not as unreasonable as it might appear at first when you take
into account the fact that, under section 28, to which I will come in a moment,
the damages are designed to be equal in amount to the benefit which the
landlord gets by having had the tenant removed from the premises, namely the
increase in the value to him of the premises. It is therefore quite
intelligible that Parliament should have said: ‘Well, if the tenant does not
choose to go back, at least the landlord shall not benefit by it’, and to have
proceeded on that basis. So, for my part, I think that the argument that there
is any defence for Mr Cafane under subsection (6) is quite untenable.
I turn,
therefore, to subsection (7), which provides:
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 concerned was such that it is reasonable to
mitigate the damages for which the landlord in default would otherwise be
liable, or
(b) that, before the proceedings were begun, the
landlord in default offered to reinstate the former residential occupier in the
premises in question and either it was unreasonable of the former residential
occupier to refuse that offer or, if he had obtained alternative accommodation
before the offer was made, it would have been unreasonable of him to refuse
that offer if he had not obtained that accommodation,
the court may
reduce the amount of damages which would otherwise be payable to such amount as
it thinks appropriate.
Let me say
straightaway that para (a) has no application whatever to this case. No
suggestion has ever been made that Miss Tagro’s conduct was such that it could
be criticised and would make it reasonable to mitigate the damage. The two
paragraphs seem to me to involve two quite different concepts.
Para (a) is
dealing with what one might describe as a contributory negligence concept,
although contributory negligence, in the context of an unlawful eviction, is
clearly not a happy phrase. But it is the idea that in some measure, although
not in such measure as in any way to excuse the conduct of the landlord, the
tenant has brought the problem on his own head and the paragraph enables the
court to mitigate the consequences for the landlord.
Para (b) seems
to me to borrow something from the concept of the defence of tender in relation
to a debt, a defence which is only available if tender takes place before the
proceedings are begun. It is, therefore, necessary to consider what is meant by
the phrase ‘before the proceedings were begun’ in para (b). It will be
remembered that subsection (7) begins with the words, ‘If, in proceedings to
enforce a liability by virtue of subsection (3) above . . .’
Mr Neuberger
would have argued, if he had been given the opportunity of doing so, that that
meant the totality of the proceedings which were begun at the beginning of
August with the claim for an injunction and that, therefore, there is no
question here of any offer of reinstatement before the proceedings were begun.
Mr Carnwath argues strongly that these were not proceedings to enforce a
liability until an amendment took place later in August and that para (b), with
its reference to ‘before the proceedings were begun’, cannot be referring to
proceedings which had nothing whatever to do with the enforcement of a liability
under subsection (3).
I am bound to
say that, for my part, although I have to accept that it is an obiter expression
of opinion on the facts of this case, I think Mr Carnwath is wholly correct in
his argument. I say it is obiter because the question would arise as a
matter of decision only if Mr Carnwath could make good his argument that there
was an offer to reinstate the former residential occupier in the premises in
question at any time and, on the facts as I see them, there never was any such
offer. All that was on offer was to give her the key and to readmit her.
Certainly, there was no suggestion that the room was put into proper order, the
locks repaired or any offer made to Miss Tagro to allow her to resume
occupation in any realistic sense of the word. But, had it arisen, as I say,
and it may arise in other cases, my view would have been that the subsection is
referring to a time before there is a claim in the proceedings under sections
27 and 28 of the Act.
So much for
the appeal in respect of liability. But Mr Carnwath, on behalf of Mr Cafane,
has also addressed arguments to us on the subject of quantum. That is governed
by section 28 and I think I need only read subsections (1) and (2):
(1) The basis for the assessment of damages
referred to in section 27(3)
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.
On the facts of
this case, the learned judge was concerned to consider not the value of the
room which had been let to Miss Tagro but the value of the whole building,
including four bed-sitting-rooms and the business premises below.
Miss Tagro, or
those acting on her behalf, called a surveyor, who was an associate member of
the Royal Institution of Chartered Surveyors, to give evidence. He had earlier
given them a valuation before the judge and he had revised his valuation because
he thought there had been a change in market conditions by the time of the
hearing. In this he was wrong because the relevant time is immediately before
the residential occupier ceased to occupy the premises (subsection (1)). He
then gave oral evidence, and his evidence was, first of all, as to a freehold
value, which was really immaterial because Mr Cafane was not a freehold owner,
and he went on to consider the rental value of the whole building, including
the shop. He capitalised a profit rental and he considered the extent to which
the value of Mr Cafane’s interests would be reduced by the presence of Miss
Tagro. He said:
I start with
freehold with occupancy ie £89,000 then made deduction of £45,000 ie amount of
rent × 10 being capital value of Mr Cafane’s
interest. This produces £44,000 which represents value of leasehold interest
with Miss Tagro as sitting tenant. £75,000 [which was the figure that he had
valued Mr Cafane’s interest with vacant possession] minus £44,000 equals
£31,000. This represents the difference in value of the leasehold interest with
or without Miss Tagro. £31,000 is my final figure for damages.
Mr Cafane,
who, I imagine, knows something about properties, was invited to cross-examine
and asked whether the valuation took account of disrepair because, in the
indirect way in which judges normally take notes of evidence, the following
sentence appears:
Cross-examined
— this takes into account disrepair as in my
report.
Then there was
a re-examination on the same point.
Mr Cafane called
no evidence to dispute this figure. Mr Carnwath is therefore reduced to saying
that the learned judge can be faulted on the footing that no reasonable judge
could have accepted that evidence. That submission he made simply and with
force and with slightly more difficulty when Russell LJ said, ‘Well, what
should he have done?’ It is true, I
suppose, that he could have adjourned the hearing and urged the landlord to
call expert evidence. But is difficult to see how he could have said, ‘I am not
satisfied that any damages are due on this evidence’ and, if he is not to say
that, then he would have in some way to reduce the surveyor’s figure on the
basis, I suppose, of what he (the judge) thought were proper values. Had he
done so, this court would probably have quashed his decision on the grounds
that he was acting not upon evidence and not upon something of which a judge
should take judicial knowledge but upon some extraneous view as to a matter of
fact.
But,
essentially, what Mr Carnwath concentrates upon is his submission that there is
no evidence that the judge fully appreciated that this was only a monthly
tenancy as far as Mr Cafane was concerned and that, had he appreciated that, he
could not have accepted this evidence. The difficulty about that argument —
apart from any other difficulties and there are many — is that the surveyor was
entitled to have regard to the realities of the situation and to have regard to
the extent to which Lambeth Council were likely to be minded to serve any
notice to quit and would be successful in any event, bearing in mind the
provisions of the Landlord and Tenant Act 1954. If the surveyor, applying his
local knowledge and professional expertise, came to the conclusion that the
lease, other things being equal, notwithstanding that it could be theoretically
determinable on a month’s notice, would go on virtually for ever, there could
be no possible faulting of that aspect of his valuation.
He also says
that the surveyor should have approached the matter on the basis that the value
of the property without Miss Tagro would have been virtually nil because the
lease contains prohibitions against assignments and subletting and, says Mr
Carnwath, if we were deciding what Mr Cafane could have got for premises
without Miss Tagro, no one would have bought it because, as soon as they took
an assignment, they would be faced with an application for forfeiture by
Lambeth London Borough Council.
There is the
scintilla of a point of law there in that clearly the court would have to have
regard to what was the interest of the landlord whose value had to be
determined under section 28(1)(b), but they would have had some guidance from
section 28(3), which provides:
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.
I do not
understand that section to contemplate, as Mr Carnwath’s argument contemplates,
that the premises will be treated as virtually inalienable and having no value
in consequence. Subsection (3) clearly contemplates that there shall be no
increase in the damages because the effect of the tenant being dispossessed is
that it enables some very valuable development to take place. But the whole
concept of the landlord in default selling his interest on the open market to a
willing buyer assumes that he can sell it on the open market to a willing
buyer, and that involves the subsidiary proposition on the facts of this case
that the willing buyer would take a lease from Lambeth Council on a monthly
basis subject to the Landlord and Tenant Act with a covenant against subletting
or assignment in exactly the same way as Mr Cafane had done. In my judgment,
there is nothing in that point.
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 Mr Cafane 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.
Accordingly,
and for those reasons, I would dismiss the appeal.
RUSSELL and NOLAN LJJ agreed and did not add anything.
The appeal
was dismissed with costs, such order not to be enforced without further order.
Legal aid taxation was ordered.
