The court of appeal has held in Smith v Khan that in unlawful eviction cases damages must compensate the tenant for not only depriving them of the property but also for anxiety, inconvenience and mental stress.
The claimant was a Nigerian national who had leave to remain in the UK but was not entitled to any state benefits. The Claimant’s husband was granted an AST in June 2014 for a property in Nottingham at a rent of £300 a month. The tenancy was due to expire on 30 June 2015.
On 4 March 2015 the Claimant’s husband left the property to find work in Scotland. Initially the Claimant did not know where her husband had gone but he later contacted her and told her that his benefits had stopped and that he was in rent arrears.
On 1 April 2015, the Defendant landlord, served a notice on the Claimant purporting to terminate the tenancy. The Claimant sought advice from a Housing Advice Centre who wrote to the Defendant advising him that his notice was invalid and that he needed a court order to obtain possession.
On 15 April while the Claimant was away from the property the Defendant changed the locks and refused to respond to any of the Claimant’s calls seeking re-entry. The Claimant was unable to secure any assistance from the local authority because of her immigration status and as a result spent many months sleeping on the floor of a friend’s property.
On 18 May, the Claimant was granted an injunction requiring the Defendant to re-admit her to the property. It then transpired that the Defendant had in fact already re-let the property to another tenant.
The Claimant’s husband did not attend the trial for damages. The Claimant gave evidence that she was in touch with her husband and that he intended to return to Nottingham. The Defendant confirmed that he had also spoken to the Claimant’s husband and accepted that he intended to return. However, the Defendant argued before the court that the Claimant had failed to establish that the property was her marital home, that her husband had abandoned the property and he had changed the locks to avoid problems with squatters and vandals. The Defendant also alleged that the Claimant was living under a sham marriage and was making a false claim.
The Judge found that there was no evidence to suggest that the Claimant’s husband intended to surrender the tenancy and was satisfied that the couple were lawfully married.
Consequently, the judge awarded:(a) £1,500 aggravated damages; (b) £1,200 exemplary damages; (d) £1,000 special damages for lost possessions; and, (d) general damages for trespass in the sum of £9,280.
Court of Appeal
The parties first appeal was heard by a Circuit Judge in the County Court. That judgement was then appealed to the Court of Appeal on 3 grounds. The Claimant’s appeal on 2 grounds were allowed. The Defendant’s cross appeal was dismissed.
On the findings of fact, the Court of Appeal held there was no unequivocal representation or conduct by the Claimant’s husband which could have reasonably led the Defendant to re-take possession on the basis that he had intended to terminate the tenancy. The tenancy had not been surrendered on 15 April 2015 (date Defendant changed locks).
With regards to the award the Court held that the appropriate period for the award of general damages was from the date of the eviction (15 April 2015) until the end of the term of the tenancy (30 June 2015). The reason for this is that on 18 May 2015 the Claimant obtained an order for re-instatement. However, the Claimant did not enforce the order and appeared to accept the state of affairs, only pursuing her claim for damages.
The Court therefore considered the daily rate which should be applied for the calculation of general damages. Specifically, the Court held that in the case of unlawful eviction, damages must compensate the tenant not merely for the letting value of the property of which a tenant has been deprived of but also for the anxiety, inconvenience and mental stress involved in the loss of what was the tenant’s home. The daily rate was therefore determined to be £130 per night making the general damages award a total of £9,880.
Many still consider changing the locks the best course of action for tenants that fall into rent arrears. This case is a reminder that it is never the best course of action and for those that are unsure of their rights advice should be sought prior to taking any action.