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Caselaw

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Harassment and unlawful eviction Cashmere v Walsh, Downing and Veale

Central London County Court, 27 October 2009

Mr Cashmere was granted an assured tenancy of a flat in the Docklands in 1990. In 2000, Ms Downing bought the flat as the bare trustee for Mr Walsh. Ms Veale was Ms Downing’s mother and a business associate of Mr Walsh. Between 2000 and 2003, the flat suffered from minor disrepair (a light pendant, windows and a storage heater in the living room did not work). In 2003, the second storage heater in the living room also became inoperative. In 2004, the bathroom was refurbished by Ms Downing, but thereafter the handle on the cistern kept breaking and the original vinyl flooring in the bathroom was not replaced.

In June 2007, Mr Cashmere began to spend more time at his girlfriend’s home because of the defects to the flat. He was, nevertheless, still in occupation. Ms Downing and Ms Veale promised that they would carry out repairs. On 2 December 2007, they asked Mr Cashmere to move out for the duration of works. Mr Cashmere moved out and allowed the landlord to clear the flat of his belongings, which were piled in the corridor. The works were completed within a week; they included a new front door and a new lock.

When Mr Cashmere asked for a copy of the keys so that he could move back in, he was told he could not have them as there were rent arrears. He made several attempts to call the defendants and went to their home but was sent away by Ms Veale. He contacted solicitors who wrote pre-action letters to each of the defendants demanding that he be allowed to return and that his belongings be restored to him.

Mr Walsh indicated that he was now the owner of the flat and that he had a new tenant in the flat. The annual rent was £10, 920. In a claim for damages, HHJ Cowell found the defendants had duped Mr Cashmere into handing over the flat to them on the pretext of repairs being required and that although works had been done, there had never been any intention to return the keys to Mr Cashmere.

He awarded damages against:

  • Mr Walsh (as the owner of the premises) in the sum of £73, 215;
  • Ms Downing (as the co-owner until just before the eviction and as Mr Walsh’s agent at all material times) in the sum of£33, 715; and
  • Ms Veale (as an agent of Mr Walsh with a controlling influence over the others) in the sum of £24, 515. The awards were calculated as follows:
  • £9, 200 for disrepair. Damages of £1, 200 for the first three years (i.e., £400 per annum (four per cent of the rent)) and damages of £8, 000 for the remaining five years (about 15 per cent of the rent).
  • £47, 000 against Mr Walsh under HA 1988 ss27 and 28.

He had become the legal owner by the time of the unlawful eviction. Although Mr Cashmere had previously caused noise nuisance to his neighbours and had ‘historic’ arrears of about £7, 000, it was plain from the evidence that neither of these factors was the reason for the eviction. Although the defendants had chased housing benefit (or assisted in doing the same) the evidence showed that it was not until the day on which they refused to hand over the keys to the flat that they first required Mr Cashmere to make any payments himself. The true reason for the eviction was the desire to sell the flat which was achieved following the unlawful eviction.

It followed that no reduction was appropriate under s2 7(7)(a) either by reason of the noise nuisance or by reason of the arrears.• £8, 000 against Ms Downing and Ms Veale for their part in the deception and the refusal to hand over keys, which amounted to a trespass.

Mr Cashmere had take n over 18 months to find suitable alternative accommodation.

  • £500 for the failure to return a deposit.
  • £6, 515 against Mr Walsh and Ms Downing for the loss of Mr Cashmere’s belongings which were never recovered.
  • Aggravated damages of £10, 000 against all three defendants.

Mr Cashmere had been duped into handing over access to the flat. He had even assisted in his own eviction by helping to store belongings in the communal corridor, a fact which the judge described as the consequence of an appalling piece of treachery. When told he could not have the keys, his belongings were left outside and were eventually dumped by the defendants. Mr Cashmere had no opportunity to recover them as he was never told where they were.

In subsequent correspondence with Mr Cashmere’ s solicitors, the defendants, who were plainly acting together, had lied about the whereabouts of his belongings, had denied the eviction and had denied control over the flat at the relevant time. They had also lied about a new tenant being put into the fl at after the eviction, a lie that caused Mr Cashmere’s advisers not to pursue an injunction for reinstatement to the flat.

Damages

Odera v Iqbal Luton County Court.3 September 2009

The claimant was the assured short hold tenant of a room in a three-bedroom house with shared, common amenities. From August 2007, she lived there with her 11-year-old daughter. The defendant was the landlord. There was no written agreement. Ms Odera claimed that throughout her tenancy the defendant harassed her by entering the premises unannounced and without warning. In January 2008, he gave her a defective notice seeking possession. She began looking for alternative accommodation.

On 17 February 2008, she packed her belongings and told the defendant that she was on her way to collect the keys for her new accommodation. However, the new landlord would not give her the key to the promised accommodation as her deposit was short by £60. She returned to the premises about 8 pm. Later, the defendant and another man removed her belongings and placed them outside the front of the property. He dragged both the claimant and her daughter out of the bedroom, down the stairs and outside. They remained there for approximately an hour and a half. Although the police were called, they accepted the defendant’s word that the claimant had no right to remain in the premises, but requested that he store her belongings until she could collect them the next day. She spent the night in emergency accommodation, and then stayed with her sister in Watford for three days.

When the claimant returned to the premises to collect her belongings, she discovered that they had been discarded in the back garden and were soaked and rain damaged. HHJ Kay QC accepted the claimant’s evidence. He found that she had been subject to harassment from the defendant after the expiry of the invalid notice to quit on 6 February until her eviction on 17 February. The judge accepted that the claimant and her daughter were assaulted. He found that although the claimant had hoped, was ready to and intended to vacate the premises, she had not formally surrendered the tenancy; she had not handed over the keys and did not do any unequivocal act amounting to a surrender. The judge accepted that her belongings were damaged in the way alleged. He ordered an enquiry concerning damages for the value of the belongings, to be the subject of a later hearing.

In the interim, he awarded general damages of:

  • £500 for breach of covenant for quiet enjoyment and trespass for the two weeks before eviction;
  • £1, 000 for the assault and method of eviction;
  • £1, 500 aggravated damages, particularly given that the claimant’s daughter witnessed, and was subject to, an assault; and
  • £1, 000 exemplary damages because the defendant sought to increase his income by obtaining new tenants who could pay the full rent for the entirety of the premises.
    Subsequently, the parties agreed a figure of £750 by way of special damages.

The following report is published with thanks to Arden Chambers 020 7242 4244

London District Properties Management Limited v Goolamy [2009] EWHC 1367 (Admin)

The High Court has held that where a fixed term assured tenancy includes a rent increase clause, that clause does not become a term of the statutory periodic tenancy that arises on expiry of the fixed term. Accordingly, the landlord can increase a statutory periodic tenant’s rent by service of a notice under s.13, Housing Act 1988.
Assured Tenancies
Where a fixed term assured tenancy comes to an end by effluxion of time, a statutory periodic tenancy arises: s.5(2), Housing Act 1988. Subject to the provisions of the Act, the terms of the statutory periodic tenancy are, in general terms, the same as those which applied during the fixed term: s.5(3).
Increases in rent for periodic assured tenancies are governed by ss.13 and 14, 1988 Act. Section 13(2) allows a landlord to serve a notice proposing a new rent. If the tenant does not accept the proposed rent, he may refer the notice to a rent assessment committee for it to determine the new rent in accordance with the provisions of s.14: s.13(4). Section 13(1) provides that the landlord’s right to use the statutory procedure applies to:

“(a) a statutory periodic tenancy…; and
“(b) any other periodic tenancy which is an assured tenancy, other than one in which there is a provision, for the time being binding on the tenant, under which the rent for a particular period of the tenancy will or may be greater than the rent for an earlier period.”

Facts

In June 2001, the appellant landlord granted the respondents an assured tenancy of a property for a term of three years. Clause 6 of the tenancy agreement provided that the yearly rent payable during the term or any subsequent statutory periodic tenancy would increase by five per cent each year.

In September 2008, the landlord served a notice under s.13(2), 1988 Act, proposing a substantial increase in the rent. The tenants referred the proposed increase to the rent assessment committee. The committee held that clause 6 of the fixed term tenancy continued as a term of the statutory periodic tenancy. Accordingly, as the tenancy contained its own rent review clause, the committee considered that it did not have jurisdiction to determine the application.

The landlords successfully appealed to the High Court. On the expiry of the fixed term, a statutory periodic tenancy came into being under s.5(2), 1988 Act. Section 5(3) preserves the existing terms of the fixed term tenancy, subject to, inter alia, s.13. Under s.13, there is a contrast between statutory periodic tenancies and other periodic tenancies. In the case of other periodic tenancies, any contractual rent increase clause prevails. Conversely, in the case of statutory periodic tenancies, the statutory scheme prevails. Accordingly, the landlord could increase the rent by notice under s.13 and the rent assessment committee had jurisdiction to determine the new rent.

inter alia, s.13. Under s.13, there is a contrast between statutory periodic tenancies and other periodic tenancies. In the case of other periodic tenancies, any contractual rent increase clause prevails. Conversely, in the case of statutory periodic tenancies, the statutory scheme prevails. Accordingly, the landlord could increase the rent by notice under s.13 and the rent assessment committee had jurisdiction to determine the new rent.