Q&A: Clarifying points on eviction

Question 1

I run a greengrocer within a mixed-use building and have a tenancy of the flat upstairs. With the permission of my landlord, I let a room in the upstairs flats to one of my employees. Following a complaint by that employee about the flat’s condition, my landlord changed the locks, excluding me and my employee from the flat. Am I liable to pay my tenant damages for unlawful eviction?

Answer

Probably not.

Explanation

Potential causes of action that may be brought by a tenant unlawfully evicted from residential premises include:

• a claim for breach of covenant for quiet enjoyment and/or other breach of contract;
• a claim in tort for trespass to land and/or goods; and/or
• a claim for damages for unlawful eviction under section 27 of the Housing Act 1988.

Often, a combination of these causes of action may be pleaded depending on the circumstances of the case. Crucially, the identity of the person responsible for the unlawful eviction will impact on what causes of action are available and who may be liable to pay damages.

In Brem v Murray and another [2022] EWHC 1479; [2022] PLSCS 94, the issue of whether a landlord was liable for the actions of the superior landlord was considered by the High Court on appeal.
Benjamin Brem ran a hairdressing salon and had a tenancy of the flat upstairs. Brem’s landlord and the owner of the building was Steven Marchant. With permission of Marchant, Brem let a room in the flat to Oneka Murray, who was his employee.

Following complaints by Murray about the condition of the flat, Marchant changed the locks, excluding both Brem and Murray from it. Murray’s belongings were removed from the flat and some were ruined. Brem was present during the eviction; he stood by and allowed it to happen.
Murray issued a claim for unlawful eviction against both Brem (as her landlord) and Marchant (as her superior landlord). The claim was pleaded as a claim for common law damages and/or damages under section 27 of the Housing Act 1988.

The county court judge allowed the claim, ordering Marchant and Brem to pay special damages in the sum of £19,510. The judge ordered Marchant and Brem to pay common law damages in the sum of £4,000 and £1,000 respectively, together with Murray’s legal costs.

Brem appealed on the basis that he was not liable to pay damages, given that he had not evicted Murray. The High Court allowed the appeal, on grounds that Brem’s omission was insufficient to give rise to a breach of the covenant to give quiet enjoyment of the premises. Moreover, it could not be said that Brem had unlawfully deprived Murray of her occupation of the flat within the meaning of section 27.
Accordingly, the order against Brem was set aside, but Marchant remained solely liable for damages and legal costs.

Question 2

I am the tenant of a flat. I returned from holiday to find that my landlord had changed the locks and left my belongings on the street. I have nowhere else to live. Is there anything I can do to get back into the flat?

Answer

Yes. It may be possible to apply to the court for an urgent injunction requiring the landlord to grant you re-entry to the flat.

Explanation

A tenant who has been unlawfully evicted from residential premises may promptly apply to the court for an interim injunction for an order authorising their re-entry into the premises. They will need to provide evidence supporting an application for an urgent interim injunction, which will need to explain the basis of their occupation of the property, the circumstances of their eviction and the likely consequences of not being granted re-entry. Breach of the terms of an injunction can result in committal proceedings (with the possibility of prison in the most serious cases).

In an application for an interim injunction the court will not consider the full merits of the case; instead it will consider whether it is “just and convenient” to grant the relief sought. The proper approach to this test was set out by the House of Lords in American Cyanamid Co (No 1) v Ethicon Ltd [1975] UKHL 1, in which it was said that the court should answer the following questions:

• Is there a serious issue to be tried?
• Are damages an adequate remedy for either side?
• Where does the balance of convenience lie?

In the face of an apparent unlawful eviction, the balance of convenience usually favours granting an interim injunction for re-entry to the premises pending trial. Unfortunately, if an innocent third party has been allowed into occupation of the premises in the meantime, then the court may be unwilling to grant an injunction for re-entry.

If an injunction is granted, then the landlord will usually be required to allow the tenant to re-enter the premises within a specified time, and a failure to do so may amount to contempt of court.

This article was first posted on the Estates Gazette.

Brooke Lyne is a barrister at Landmark Chambers and Emma Preece is a senior associate in the real estate disputes team at Charles Russell Speechlys LLP