Pilakoutas v. Schofield, Sheffield County Court, 22 May 2009

 Here Professor Pitakoutas was a landlord by purchase of a house in multiple occupation.  The tenant, Ms Schofield, had originally  a tenancy of flat 5, which she had rented in 1993.  The landlord had, very properly served a section 20 notice on her, which was required at that time.  However some time before February 1997 (when the requirement for s20 notices ceased) Ms Schofield moved to flat 8, because it was a nicer flat.  No section 20 notice was served on her before she did this. 

Professor Pitakoutas assumed that she was an assured shorthold tenant, served a s21 notice, and issued proceedings for eviction.  His case was that after she moved flats she had entered into a new tenancy of ‘the same or substantially the same premises’.  And that her tenancy therefore remained an AST.

The Judge however disagreed.  He found that flat 8 was a distinct and separate dwelling.  As no s20 notice had been served it could not be an AST and therefore section 21 could not be used.  The claim for possession was dismissed.

One of my cases – involving a room change in a shared house

This fits in with a case I ran a few years ago.  Like Professor Pitakoutas, my clients were landlords of a shared house where tenants rented individual rooms.  One of the tenants had moved from a small room to a large room without my clients consent.  They reluctantly agreed to sign a monthly periodic tenancy and then (as he was a bit of a troublemaker) immediately served a section 21 notice on him.  I was then instructed to issue proceedings.

Happily this all took place after 1997 so we did not have the problem of the section 20 notice.  However due to the efficiency of yours truly in getting the case to court quickly, we came unexpectedly across the problem of  the rule against making an order for possession under s21 within the first six months of the tenancy (s21 (5)).

Because the tenant was living in the same house, somehow this point had passed us by.  However it did not escape the eagle eye of the Judge who set the case down for hearing.

Fortunately however the six month period  expired just within the six week period a Judge is allowed to suspend an order for possession, so we were able to evict the tenant.  But it was a good thing we did not have an earlier hearing date. 

So if you have a tenant do the same thing to you – remember that the effect of the tenant changing rooms is that it is a completely new tenancy.  So the Judge cannot order possession until after the tenant has been in possesison of the new flat/room for six months.  And if it is an old tenancy, you will have problems if no section 20 notice was served on the tenant before he moved into his new room. 

Have you had any cases involving tenants moving to another room in a shared house.  What problems did you encounter?  Was an order for possession made?

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1. Fakhari v. Newman, Woolwich County Court, 7 January 2010

Here the landlords failed to protect the deposit, and there were repairing problems with the boiler, and the windows.

However it was the landlords’ behaviour  which was the main problem – they made it clear that they did not want him in the property and were continually contacting him about it.

They tried to make him sign a tenancy agreement for an extra £500pm and attended the property without an appointment.  They also reported Mr Newman to the police saying that he had threatened to blow up the building.  When they issued proceedings for possession Mr Newman counterclaimed.

The Judge awarded the tenant:

• £2,995 under the tenancy deposit regulations
• £9,250 for disrepair (25% of rent btn May 08 – Dec 09, 75% rent btn Dec 08 and Jun 09, 43% rent from June onwards)
• £2,000 for harassment
• £2,000 exemplary damages

Total £16,205, plus the Judge ordered that the landlord protect the deposit.

2. Walsh v. Shuangyan, Manchester County Court, 14 January 2010

This concerned a tenancy for a room in an HMO.  The Local Authority served notices on the landlord as she had failed to obtain a license, requiring her to do various remedial works.  As a result of the boiler and electricity being disconnected, all the tenants except Mr Walsh moved out.

Mr Walsh was then subjected to a reign of harassment and intimidation by the landlord and her father, who also assaulted him.  On one occasion he had to barricade himself into his room while they were in the house.

On 16 September he arrived home to find the locks had been changed and some of his possessions put into bin bags.  The rest were still inside the room where he could not get at them.  He complained to the Local Authority Tenancy Relations Officer (TRO) who spoke to the landlord but she still refused to let him in.

She also refused to comply with an injunction obtained by Mr Walsh and was committed to prison for 28 days.  Mr Walsh had to sleep on friends sofas for 30 days, missed work, and developed a painful back.

He was awarded the following:

• £2,000 for harassment before the eviction
• £6,000 for the eviction and its consequences (based on a ‘daily rate’ of £200)
• £4,000 for aggravated damages
• £1,500 exemplary damages (representing the costs the landlord might have incurred had she sought advice and evicted Mr Walsh lawfully)
• £5,750 special damages for his lost possessions and earnings
• £204 interest
• Costs on an indemnity basis

Total £19,454 (plus the indemnity costs)

3. Anslow v. Hayes, Manchester County Court, 15 October 2009

This is another HMO tenancy of a room case.  Mr Anslow accrued some arrears and as a result was threatened with eviction by his landlord.  Then one day he arrived home to find he was not allowed to enter.  He contacted Mr Hayes to get him allowed back in, but Mr Hayes refused and instead reported him to the police.

Mr Anslow got help from a TRO and a solicitor, but he was still refused admittance.  His girlfriend had to go in to get his possessions, but some were never recovered including some of high sentimental value, which were disposed of or removed without his consent.  He spent 73 days in cramped conditions with his then girlfriend before finding somewhere else to live.

The Judge awarded:

• £7,000 general damages to compensate him for the 73 days he was  deprived of his home
• £2,000 aggravated damages, taking into account the fact that Hayes had been warned that his conduct was illegal
• £1,000 exemplary damages (representing the costs the landlord might have incurred had he sought advice and evicted Mr Anslow lawfully)
• Interest and costs

Total £10,000 plus costs

4. Schuchard v Fu, Brentford County Court, 25 February 2010

Another HMO room case, Mr Suchard was the tenant.  The landlord wanted him out so she could do renovation works.  She sent letters but no s21 notice.

On 6 July she wrote asking him to leave the next day becuase of rent arrears.  On 7 July she changed the locks to the front door and refused to give him the new keys.  The following day the local TRO asked her to readmit Mr Suchard but she refused, and said she would only let him in again if the rent arrears were paid.  She continued to refuse to allow him in when his solicitors wrote to her.

Mr Suchard was homeless for 120 days as he, his solicitor and the TRO, were unable to find him accommodation.  He was then housed for 77 days by the local authority, but after that he spent the next 35 days up to trial sleeping on a friends floor.  He was awarded:

• £24,000 general and aggravated damages at £200 per day while he was street homeless
• £2,000 for the 77 days he was given accommodation by the local authority
• £4,375 general and aggravated damages for the final period when he was living on a friends floor
• £1,750 exemplary damages, as the landlords had evicted him so he could do up the property disregarding his rights

Total £32,125.

5. Keddey v. Hughes, Sheffield County Court, 12 March 2010

Mr Keddey lived in a property with his mother from 2005, and took it over for himself from mid 2007.  The landlord believed that Mr Keddey had agreed to move out in October 2008 and arranged to let the property to new tenants.  However Mr Keddey then decided not to move out after all.

The landlord should of course have read >> this blog post here.  However instead he assaulted Mr Keddey on a number of occasions, and then physically ejected him from the property, although he was able to get back in later that day.

However later in the month Mr Keddey came home to find the landlord in his property packing up his furniture.  Some of his possessions were damaged.  Mr Keddey decided to leave and not return.  He stayed in bed and breakfast accommodation for three to four weeks before finding alternative accommodation.

The Judge awarded:

• £4,620 for unlawful eviction, being £165 per night for the 28 days in bed and breakfast
• £1,500 for harassment and trespass to person and property
• £1,000 for aggravated damages
• £2,000 exemplary damages, as the ejection from the property had been public, upsetting and humiliating, and the defendant had been warned by the local authority not to do it.  Plus the rent charged to the new tenants was more than that charged to Mr Keddey
• £750 special damages

Total £9,870.

All  five are serious cases, however none of them have reached the level of damages in the Cashmere v. Walsh case.

Have  you been involved in any similar cases?  How do these levels of damages compare?

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This urban myth is really about the law overriding what landlords want to happen.  What many landlords would like, is to have their tenants  live in the property for a short probationary period, during which time the landlord can evict the tenant at will, before the tenancy starts properly.

Not possible.  Sorry!

Street v. Mountford [1985] House of Lords

It all goes back to the case of Street v. Mountford in 1985.  This is a House of Lords decision which said that if an occupier had:

• exclusive possession of a property
• for a term (ie an agreed period of time, and
• was paying rent

then it was a tenancy, whatever the landlord called it and whatever was  written on the piece of paper signed by them both (in the Street v. Mountford case the landlord was calling it a license agreement).

Interestingly there has been a recent case on this point, reported in the excellent LAG Magazine.  This case is called Kirby v. Lynch.  (You will also find it mentioned in the Garden Court Chambers Housing Law News bulletin.)

Kirby v. Lynch [2010] QBD

In this case Mr Lynch wanted to rent a room from Mr Kirby in February 1997.  Mr Kirby said he could have it but only if he got housing benefit.  He signed a tenancy agreement and moved in on 20 February 1997.  The housing benefit was awarded some six weeks later and backdated to the 20 February.

At the time Mr Lynch moved in, you needed to serve a section 20 notice on your tenant in order to create an assured shorthold tenancy.  However this rule was changed in the Housing Act 1996 which came into effect (in this respect) on 28 February 1997.  No section 20 notice had been served in this case.  So, what sort of tenancy did Mr Lynch have?

• If his tenancy started on 20 February he would have an assured tenancy, which would give him long term security of tenure.
• However if his tenancy started when the housing benefit was received he would have an AST, and could be evicted under section 21

Mr Kirby was of the view that he had an AST.  The tenancy, he held, had been conditional upon Mr Lynch getting benefit.  Until this was confirmed his occupation had been an act of generosity, even perhaps an act of charity.  He started proceedings for possession under section 21 on this basis.

Initially he succeeded.  However, Mr Lynch appealed the decision and it went to the High Court.  Here the Judge, Davies J, held that Street v. Mountford applied.  All three elements of a tenancy were present.  There was an intention to create legal relations on 20 February which was when the tenancy began.

Conclusion – attempts to create a probationary tenancy are unwise

Of course today, the point is less important than in the Kirby case, as all tenancies (or the vast majority) are automatically ASTs.  So you will (if you are a landlord) be able to get the occupier out eventually by following the section 21 route.

However attempts to create any sort of probationary initial period are unwise, even if the tenant agrees to it. If you base a possession claim on this agreement, the Judge will almost certainly come to the same decision as the Judge in the Kirby case. Also, as this is a High Court decision, it will be binding on County Court Judges.

If an occupier is allowed to live in a property rent free, then this will not be a tenancy.  If the occupier does not have exclusive possession (for example lodgers – see more on this on my Lodger Landlord site) then it will not be a tenancy.  However apart from these situations, a landlord should assume that a tenancy has been created from the time the tenant first goes into the property.

This is why it is so important not to let someone into occupation until you are sure that you want them as your tenant.

Do you know of any ‘urban myths’? Or have you had any problems with this particular urban myth? Please post a comment if so, I would love to hear from you.

This post is part of my urban myths series. You can see the rest of the series >> here.

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• Mr Henley should give up possession of the flat on or before 1st June 2007,
• Mrs Bloom should pay Mr Henley’s solicitors £16,000 in specified instalments;
• This money was not to be paid to Mr Henley until he had vacated the flat;
• Mrs Bloom should pay Mr Henley’s costs in the sum of £4,000.

The order also said that it was

in full and final settlement of any claim that [Mr Henley] might have arising from work improvements or enhancements undertaken by him or on his behalf to the [flat]“; [and] that Mr Henley would give up possession of the flat pursuant to the agreement “in good tenantable repair and condition”.

My Henley duly left the flat on 1st May 2007, and Mrs Bloom, no doubt with sighs of relief, carried out ‘substantial’ redevelopment work to the property.

However unbeknown to her, Mr Henley had, before he left, commissioned a report on the extent of dampness and disrepair in the flat from Mr Sennett, an experienced Environmental Health Officer. On 28 November (a year and a half after he had vacated the property) he issued proceedings against Mrs Bloom claiming compensation from breach of her statutory repairing obligations.

Surely though this was abuse of process and could be struck out? There had already been one case about the property which had referred to its condition (Henley had after all agreed to give the property up in good tenantable repair and condition), and anyway it was now impossible, claimed Mrs Bloom, for her to counter the report as she had had the property renovated. It would therefore be impossible to have a fair trial.

The District Judge agreed with her. So did the Circuit Judge who said that Mrs Bloom “would be fighting the case with one hand behind her back” and that the unfairness “had been caused entirely” by Mr Henley. Henley was refused leave to appeal and it looked as if Mrs Bloom was safe. But then, after a further oral hearing, he was granted permission to appeal.

Most unfortunately for Mrs Bloom the Court of Appeal then found for Henley. Here, in essence, are their main reasons:

• At the time of the possession claim, Henley could not have brought his disrepair claim as he had not at that stage commissioned the report

• There is a general principle that every person with an arguable claim should be able to pursue it in court, which is enshrined in Article 6 of the European Convention

• The Appeal Judge considered that the two cases (ie the possession claim, and Henleys claim for compensation) were about different issues. The provision in the consent order which referred to the state of the flat was concerned with Henley’s obligation in relation to the state of the flat at the end of the tenancy, and had nothing to do with the extent of any failure to repair by Mrs Bloom during the currency of the tenancy, let alone the extent of any damage suffered by Mr Henley

• If the possession claim had proceeded to trial, and had failed, so that Mr Henley remained in possession of the flat, it would have been impossible for Mrs Bloom to establish that the disrepair claim was an abuse.

• Although the order was expressly stated to be “in full and final satisfaction” of any claim Mr Henley might have in respect of improvements which he had carried out to the flat, there was no mention of any other claim

• Mrs Bloom knew that there had been issues regarding the repair of the flat (she had after all been served with notices by the Local Authority regarding the disrepair) and had failed to raise them at the time the earlier case had been settled.

• The possession claim had been brought by Mrs Bloom and Henley had not raised any counterclaim.

• A fair trial was still possible, even though the flat had been refurbished, as Mrs Bloom had access to reports done before the works, and evidence from the builders as to its condition.

So the appeal was allowed and Henley can bring his claim for disrepair. However the Judges seem to think that there is a strong possibility that he deliberately refrained from taking action any earlier (“there are grounds for thinking that Mr Henley has acted in a rather unattractive way by keeping the disrepair claim up his sleeve“), and the case leaves rather a nasty taste in the mouth. Indeed the Judges  made the following suggestion regarding the forthcoming case:

Further, if the court hearing the disrepair claim took the view that Mr Henley had deliberately refrained from informing Mrs Bloom of his intended claim, knowing that she would refurbish the flat and be disadvantaged in defending the disrepair claim, it might well be appropriate to draw some adverse inferences against Mr Henley’s case.

It is possible that he may also be penalised in costs, in which case Mrs Bloom may not come out of it too badly. But I am very glad that I am not the lawyer who approved the terms of the consent order on her behalf.

For those interested, the case Henley v. Bloom is reported online.

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Section 21 possession notices and eviction

I am pleased to report a Court of Appeal related decision on section 21 notices, which finally takes a sensible attitude on saving clauses.

As you may or may not know, where the notice is served after the fixed term has come to an end, the persons drafting the legislation in their wisdom, specified that the landlord must state in the notice a date which is the last day of a period of the tenancy. Or, to quote the relevant section of the Housing Act 1988:

Section 21
(4) Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied—

(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice [F10 in writing] stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and

(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above.

Previous Court of Appeal decisions (ie Fernandez v McDonald in 2003) have found that if the date on the notice is even one day wrong, the landlord will fail in his claim for possession.

In order to circumvent this harsh rule, most forms now give ‘protective wording’ which effectively says that if the date on the notice is wrong, then it should be … [giving a formula for working it out]. The only problem is that some Judges have said that this should not be allowed as it is unfair to allow a landlord to effectively give two dates.

However hopefully this unhelpful and obstructive attitude will no longer be an option. In the case of Elias v. Spencer a landlord served a notice which said possession should be provided

“After: 22ND NOVEMBER 2008 or, if this notice would otherwise be ineffective, after the date being the earliest date not earlier than two months after the date of service of this notice when shall expire a period of the assured shorthold tenancy”

The last day of the period of the tenancy was 21 November. However the Judge found that the saving words were sufficient to validate the notice and the Court of Appeal dismissed the tenants application for permission to appeal.

So if you are a landlord and have a similar case, you now have something to show a Judge who is minded to be difficult about saving clauses in section 21 notices.

Note: Readers have mentioned that the case of Church Commissioners for England v Meya makes a similar point. I learned of Elias v Spencer through the weekly housing law news service provided by Garden Court Chambers.