The residential sector has faced increasing regulation over recent years and now most aspects of a residential landlord’s relationship with his tenant are subject to certain procedures. Whilst the majority of landlords would never dream of evicting a tenant without following the correct procedure, there remains a small minority who are unaware that they cannot just evict a tenant without running a huge financial risk, as a recent case has demonstrated.

In the case of Hunt v Hussain (April 2010), Mr Hussain was a freehold owner of premises. In May 2003, his wife granted an assured shorthold tenancy to Mr Hunt at a weekly rent of £90. However, Mr Hunt lost his job soon after his tenancy began and applied for housing benefit. Mrs Hussain then informed Mr Hunt he had to leave.

Mrs Hussain ignored correspondence from Epsom and Ewell’s Environmental Health Department warning her that she required a Court Order to evict Mr Hunt. She changed the locks and refused to reinstate Mr Hunt in the premises. For three months, 45-year-old Hunt stayed with friends on occasion but for most of the time slept in a broken-down car or where he could in his sleeping bag, until he secured alternative accommodation.

Mr Hunt suffered from bronchial asthma which was worsened by living rough and he developed depression with feelings of self-harm. Four years after the eviction, a psychiatrist determined that he was suffering from severe depression, agoraphobia and paranoid ideation and concluded that the trauma of the eviction had generated this radical deterioration in his mental health. In addition, it was difficult to predict whether he would become fit to work in the future.

The local authority prosecuted Mrs Hussain under the Protection from Eviction Act 1977. She was fined £300 and ordered to pay costs of £250. In separate civil proceedings, Epsom County Court entered Judgment against Mr and Mrs Hussain on 31 July 2009.

His Honour Judge Reid QC awarded damages totalling £56,678:
• The eviction – damages assessed at £120 per day for 65 days. The Judge refused to assess damages over the full period of 76 days that Mr Hunt was homeless on the ground that Mr and Mrs Hussain could have lawfully terminated the tenancy by serving a Housing Act 1988 Section 21 Notice.
• Damages for personal injury assessed at £45,000. The Judge was satisfied that Mr Hunt’s suffering fell into the most severe category of psychiatric damage, but due to an unsettled background and a predisposition to mental health problems, damages were reduced.
• Special damages were awarded in the sum of £100.
• Interest of £3,453 was awarded.
• The Judge granted a freezing injunction restraining Mr Hussain from dealing with the two properties in which he still retained a benefi cial interest.

In most cases, the law provides a tenant with the security that they will not be evicted until their landlord has obtained a possession order from the court. Eviction can only then be achieved via a bailiff appointed by the county court who will be tasked with enforcing the possession order. The Protection from Eviction Act 1977 makes it a criminal offence for any person to evict a residential occupier without following the correct legal procedure. On conviction, the court may impose an unlimited fine and/or two years’ imprisonment. The act also makes it an offence for any landlord, managing agent or person acting on their behalf to harass a residential occupier with the aim of making them leave their home. In addition to damages for inconvenience, stress and upset, the Housing Act 1988 provides for statutory damages on the basis of the difference in value between the landlord’s interest if the tenant remained in occupation and the value of the landlord’s interest without the tenant in occupation. Essentially, this is the difference in market value with or without vacant possession. Such damages are awarded even if the tenant suffers no inconvenience.

However, no statutory award shall be made if the tenant is reinstated in the premises before proceedings are concluded.

Landlords who have not followed the correct procedure should offer reinstatement at the earliest opportunity and rely on any unreasonable refusal. Alternatively, rent arrears can be counter-claimed to reduce an award of damages being made to the tenant. Landlords can raise the defence to an alleged unlawful eviction by showing that the landlord ‘believed’ and had ‘reasonable cause to believe’ that the tenant had ceased to reside on the premises. However, landlords must be warned that the burden to prove this would require strong supporting evidence.

As the case of Hunt demonstrates, ignoring the correct eviction procedure can cost dearly and can spell the end of a landlord’s career. It would be far better for a landlord to ensure that he does everything by the book – no matter how troublesome his tenant may be – than face the serious consequences that a conviction under the Protection from Eviction Act 1977 would have.

Ian Larkins is a solicitor in the property litigation team at law firm Weightmans LLP. Ian.larkins@weightmans.com