Statutory damages under s.27 Housing Act 1988 Under section 27 of the Housing Act 1988, a ‘residential occupier’ can claim damages if s/he is unlawfully evicted or has to leave because of harassment from the landlord.

However, if a tenant is unlawfully evicted but then reinstated before the date on which final court proceedings take place, s/he will not be entitled to section 27 damages.

‘Residential occupier’ refers to anybody occupying under a fixed term and/or a tenancy or licence which is not an excluded tenancy or licence. A ‘landlord’ is a person who, but for the occupier’s right would be entitled to occupy the premises.

In one case, an owner agreed to sell a tenanted property to two brothers and granted them a licence to occupy pending the purchase. Before completion of the sale, the brothers illegally evicted the existing tenants. Even though the tenancy agreement was still with the person selling the property, the licence granted to them meant that the brothers could count as landlords for the purposes of section 27.

The landlord has a defence to the claim for damages if: i) s/he reasonably believed that the tenant had ceased to reside in the premises at the time s/he was deprived of occupation, or ii) (in cases of harassment) s/he had reasonable grounds for her/his actions. Calculation of statutory damages The level of damages are assessed under section 28 Housing Act 1988 and can be high depending on the security of tenure enjoyed by the tenant. Damages are calculated as the difference in the value of the property, with and without the tenant living there. For the purposes of the valuation it is assumed that: i) the landlord is selling her/his interest on the open market to a willing buyer ii) neither the tenant nor a member of her/his family wishes to buy it, and iii) it is unlawful to carry out any substantial development of any of the land or to demolish the whole or any part of the building on that land.

For example, the courts have valued the value of a statutory tenancy under the Rent Act 1977 as 25 per cent of the freehold value of the accommodation. However, if the occupier is an assured shorthold tenant, the damages will not be high. In one case, the damages were assessed at £500 due to the occupier’s lack of security of tenure.

The damages are likely to be even less if the occupier has only basic protection. Reduction of level of damages The court may reduce the amount of damages if: i) before the proceedings were begun, the landlord offered to reinstate the tenant and it was unreasonable for the tenant to refuse that offer. ii) however, the offer must be of effective reinstatement, the Court of Appeal has held reinstatement ‘does not consist in merely handing the tenant a key to a lock which does not work and inviting her to resume occupation of a room which has been totally wrecked, or iii) there was unreasonable conduct by the tenant prior to the harassment or illegal eviction. Common law damages In addition to the damages which can be claimed under s.27 Housing Act 1988, an occupier who has been unlawfully evicted can claim unlimited damages at common law.

These claims are usually in two parts: general damages and special damages. In some cases it may also be appropriate for an occupier to claim aggravated and/or exemplary damages: i) general damages are for physical injury, loss of occupation, general inconvenience, and suffering ii) special damages reflect the value of specific items of property that may have been destroyed or damaged e.g. clothing or other belongings thrown away after an eviction, or damage to furniture, or other damage that a price can be put on, such as any extra cost of alternative accommodation iii) aggravated damages are for especially severe suffering, outrage or indignation at the way a person has been treated iv) exemplary damages can only be awarded in tort cases and only where the landlord’s conduct has been calculated to make a profit.

Neither general or aggravated damages for loss of accommodation nor exemplary damages can be awarded where the claimant is awarded statutory damages under s.27, Housing Act 1988.

General damages are usually calculated on a nightly basis to reflect the time a tenant has suffered loss of accommodation. The period of time for which an award is made should reflect not the earliest date that the landlord could lawfully have ended the tenancy but the date the tenancy did actually come to an end (for example because the fixed term had ended and the tenant had not made efforts to be reinstated so no statutory periodic tenancy arose). In respect of this time, the tenant should be compensated ‘not merely for the letting value of the property of which he has been deprived, but also for the anxiety, inconvenience and mental stress involved in the loss of what was the tenant’s home’. This means that the amount awarded per night may be considerably higher than the rental value.

The following are examples of the level of damages that can be awarded:
i) a secure tenant was awarded £90,500 in damages after his local authority landlord forced entry into his flat while he was away, cleared his possessions and re-let it
ii) an assured tenant was  awarded damages of £49,500 for unlawful eviction, £3,200 for the value of goods removed and for the non-return of the property, and indemnity costs (ie all, or nearly all his litigation costs) because, whilst he was in prison, his landlord re-entered the property and sold it with vacant possession without obtaining a possession order prior to the re-entering
iii) £8,800 was awarded to an assured tenant who returned from holiday to find the accommodation let to other people. The landlord subsequently threatened forcible eviction. The damages included £6,750 under section 27 of the Housing Act 1988 and £2,050 for breach of quiet enjoyment

iv) assured tenants who were threatened with violence and then illegally evicted (causing one to make a suicide attempt) were awarded £10,586 which included £3,000 aggravated damages, £2,000 for breach of quiet enjoyment, and £4,000 for unlawful eviction

v) an assured tenant who was served with an invalid notice and then illegally evicted was awarded £7,764, which included £750 compensation via criminal proceedings, £3,500 for trespass to goods and breach of quiet enjoyment, £1,500 aggravated damages, and £1,500 exemplary damages

vi) an assured shorthold tenant had a six-month tenancy. She shared the property with two other occupiers. The landlord excluded her from the property and removed her belongings. Damages were assessed at common law at £500 for the inconvenience, discomfort, and stress caused by the eviction

vii) following threats of violence from the landlord’s brother and the keys being forcibly removed from his girlfriend’s hand by the landlord, a tenant went home to find the locks being changed. The police were called and physically removed the tenant from the property and threatened to arrest him for breach of the peace. He brought a claim against the police for trespass to person and to land; they settled out of court for £2500. The tenant also claimed against the landlord and the judge awarded £7700 general damages, for 28 days when he was deprived of occupation, plus £1500 aggravated damages

viii) after a tenant withheld rent due to flooding and disrepair, the landlord physically assaulted the tenant and inflicted personal injuries, for which the landlord was found to be criminally liable. The tenant then issued a civil claim for damages for unlawful eviction and won £15,000 in aggravated damages, plus £2,000 in exemplary damages, £4,000 as separate damages for breach of covenant (due to the flooding problems), £750 for loss of belongings, and the full return of a deposit of £485 plus three-times that amount as penalty for non-compliance with the tenancy deposit protection scheme.

If you are seeking further information or advice about any of the above, please contact John on 01207654365.

Disclaimer: This briefing is for guidance purposes only. We accept no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client’s own particular circumstances.