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Unlawful eviction

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Unlawful eviction

Damages under s27 of the 1988 Act

Eviction whilst tenant in prison

Kalas v Farmer
[2010] EWCA Civ 108

Summary

T was entitled to damages for unlawful eviction when L had sold the property to a third party with vacant possession while T was incarcerated in prison.

Facts

T was an assured tenant of L. T was convicted of theft and was sentenced to two years imprisonment. Shortly after his imprisonment, L sold the property with vacant possession to a third party. T brought a claim under s27 Housing Act 1988 for damages for unlawful eviction. L defended on the grounds that T had abandoned the property or alternatively that L had reasonably believed that T had ceased to reside there (section 27(8)).

The judge found that there had been no surrender. T was aware that his tenancy was a valuable asset, had intended to return and had left possessions in the property. Further, the judge found that L had taken a ‘calculated risk’ in re-entering the premises and selling with vacant possession and was aware that T had not ceased to reside there. Damages were awarded under s27 in the agreed sum of £49,500. L was also ordered to pay T’s costs on an indemnity basis. L appealed.

Held

On the facts the judge was entitled to make the findings that he made. An argument on the appeal that damages should have been reduced under s27(7), which entitles the court to take into account the conduct of the former tenant when making an award, was rejected because it had not been raised before the trial judge.

The landlord's appeal against the indemnity costs was also rejected:
    “31. That leaves one remaining point, which is that Mr Bogle complained of the award of indemnity costs and submits that that could only be justified if there has been misconduct in the litigation and that the award of indemnity costs is not a justifiable sanction in relation simply to a judge disapproving of the relevant party's conduct generally. The judge dealt with this in the course of argument after he gave judgment, and he said this, which is at page 28 of the transcript:
      'Well I shall award costs on an indemnity basis. My reason for doing so is that I consider here that the defendant took a calculated risk. He took the view that either he could go by the formal route and seek a possession or he can go about the illegal route and he did so deliberately and if he takes that course he must run the consequences of it. There is no reason why someone to protect his position should have to subsidise his own litigation.'
    32. That is in the context where he had disbelieved the defendant's evidence that he honestly believed the claimant to have abandoned the premises. It seems to me in those circumstances there was ample justification for the judge to award indemnity costs."

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