Unlawful eviction and its consequences are something that should be ever present in a Landlord’s mind when looking to evict a Tenant for whatever reason. This week’s update highlights the potential penalties that can befall Landlords should they take possession of their property without having followed the correct and legally required route.

Regency (UK) Ltd v (1) Hussein Ali Hadi Albu-Swalin (2) Heartland Property Ltd (2019) QBD

Regency had let multiple flats to Heartland who would in turn sub-let the properties. Mr Albu-Swalin (Mr AS) was one such sub-tenant. Mr AS reported some defects in the property to Heartland who then served a notice to quit which did not comply with Section 21 of the Housing Act 1988 (HA 1988) as Mr AS was not provided with 2 months’ notice. As is common, Mr AS did not vacate the property when the notice expired. However, when Mr AS was out of the property one day, the locks were changed which meant that Mr AS and his son were not able to return to the property nor were they able to collect the majority of their belongings. Mr AS therefore brought a claim for unlawful eviction against both Regency and Heartland, the former conceding at the first hearing, on the advice from their attending Counsel, that Mr AS had been unlawfully evicted.

The Initial Award

The Judge awarded the following damages (compensation) following Regency’s concession:

• £9,000, or £150 per day for 60 days in General Damages (e.g. compensation for pain and suffering, loss of amenity etc), that being the length of the Section 21 notice Mr AS should have been given;

• £5,000 for unrecovered belongings;

• £4,000 in Exemplary Damages (e.g. compensation to punish the conduct of Regency), as the eviction was unlawful and Regency had sought to obtain better profit;

• £1,000 in Aggravated Damages (e.g. compensation for mental distress or injury to feelings by the manner or motive with which Regency had acted), as no warning or opportunity was provided to Mr AS to collect his belongings;

• £5,200 due to the poor condition of the flat and the deposit not being returned (this was not subject to the subsequent appeal).

• Total Damages Awarded - £24,200

The Appeal

Regency, following the initial hearing, changed their legal representation and then appealed the decision on three grounds:

1)      The advice received from their former Counsel to concede that Mr AS had been unlawfully evicted was negligent;

2)      The Judge had made an error in not applying Section 27 of the HA 1988;

3)      The damages awarded were excessive and Exemplary and Aggravated Damages should not have been awarded at all.

The Appeal Decision

The Court responded to the first ground, noted above, in a straight forward manner, effectively saying that just because Regency were unsuccessful at the hearing does not immediately mean that the lawyers are to blame. Furthermore, no evidence was provided to suggest that the advice from Regency’s Counsel was in fact wrong nor had Regency waived their right to ‘privilege’ as between it as a client and its Counsel to enable Counsel to have an opportunity to explain their reasoning or advice to the Court. The first ground therefore failed.

On the second ground, Regency claimed that the award for damages should be reduced under Section 27(7) of the HA 1988, which enables the Court to reduce damages for unlawful eviction if the Court considers that the conduct of the tenant makes it reasonable to do so. This argument was rejected due to the fact that Mr AS had not claimed damages via the statutory remedies under the HA 1988, therefore the award for damages was not governed by the HA 1988 (he relied instead on his ‘common law’ rights to damages). Therefore, the second ground for appeal also failed.

On the third and final ground, the Court did not see any reason to amend the awards to Mr AS. No reasonable argument to do so was presented by Regency and the damages were significantly less than Mr AS had claimed. The appeal was dismissed and Mr AS was also awarded his costs.

Conclusion

This recent case illustrates that claims for unlawful eviction are a real risk and will likely be costly to Landlords who elect to take the law into their own hands and take possession of their properties without following due process.

Landlords and agents alike need to be aware of the consequences that they can be hit with. Any possession notices need to be correct and all statutory requirements need to have been fulfilled to ensure that any notice is valid and,  most importantly, the Landlord needs to have followed the correct process before taking possession of the property or risk being open to costly unlawful eviction claims. Indeed, the ‘General Damages’ in this case could have been significantly higher had the judge awarded £150 per day until Mr AS obtained comparable accommodation or until possession could have been awarded following due process, as opposed to just the 60 day notice period.

As always we hope that this legal update has been informative and useful. Should you have any questions relating to this update, please do not hesitate to contact us on 01435 897 297 or at info@kdllaw.com

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