Civil remedies for harassment and illegal eviction

Occupiers remedies in the civil courts are usually the speediest and include injunctions and several types of damages.

This content applies to England

Remedies available in the civil courts

If negotiation with the landlord to stop harassment or prevent eviction is not possible or has failed, the occupier could pursue a remedy in the civil courts. 

It is possible for occupiers to:

  • obtain an injunction to stop the harassment and/or to get reinstated after an illegal eviction

  • claim compensation (damages) for what they have suffered

  • prosecute their landlord and/or apply for a warrant of arrest, and/or

  • ask the local authority to prosecute their landlord in the criminal courts.

An occupier can pursue a civil claim for damages in a County Court at the same time as the landlord is prosecuted under criminal law in a magistrates' court. An occupier may also apply to the First-tier Tribunal for a rent repayment order against the landlord.

Causes of action

In order to take a case in the civil court, the complainant must have a cause of action deriving from either breach of contract or tort law. There are two broad categories: breach of contract and tort (which means a civil wrong). 

Breach of contract

Where two or more people enter into a contract and one party does perform their part of the bargain, the other party can take an action for breach of contract and claim damages. 

The following causes of action are available:

  • Breach of contract – tenancy agreements and licence agreements are contracts. Any breach of terms and conditions in a contract gives rise to the right to take action for damages in the civil courts. For example, a promise to supply electricity is broken if the supply is disconnected. Regulated, assured, and assured shorthold tenants still count as having a contract while they are in occupation even if the landlord has served a valid notice.

  • Breach of 'covenant for quiet enjoyment' – it is an implied term of all tenancies (there is also a similar term applied in licences)[1] that the occupier must be able to use the premises without interference. Acts of harassment or illegal eviction would clearly breach this covenant.

Tort

A tort is a civil wrong. An action in tort arises where someone unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the wrong. 

The following causes of action are available:

  • Breach of section 3 of the Protection from Eviction Act 1977 – a landlord must obtain a court order to evict all tenants and licensees (apart from excluded occupiers) under section 3 of the Protection from Eviction Act 1977.

  • Trespass to land – trespass is entering someone's premises or land without permission or being invited but not leaving when requested. Any lawful occupier, other than an excluded occupier whose contract has expired, can use this cause of action.

  • Nuisance – this is any continual or recurring act that unreasonably interferes with the use or quiet enjoyment of premises. Any lawful occupier other than an excluded occupier with an expired contract can use this cause of action.

  • Trespass to goods and conversion – trespass to goods is unlawfully interfering with someone's property. Conversion is the civil equivalent of theft: taking an occupier's property without permission. Any owner of the goods can use this cause of action.

  • Breach of section 27 of the Housing Act 1988 – this makes unlawful eviction or harassment that leads to eviction a statutory tort. It can be used by any residential occupier (residential occupier is defined in the same way as in the Protection from Eviction Act 1977).

  • Assault – any act that puts the victim in immediate fear of being physically attacked. Any occupier can use this cause of action.

County Court injunctions

An injunction is a court order requiring someone to do (or refrain from doing) something. An injunction can order the landlord to stop the harassment or allow the occupier to re-enter their home. An injunction can be either an interlocutory injunction (an interim measure to prevent further harassment and/or antisocial behaviour during proceedings) or a final injunction.

Procedure

Normally a County Court judge will not grant an injunction unless proceedings have been started.[2] The adviser or a solicitor would therefore need to start proceedings for damages and/or an injunction by issuing a claim. The particulars of claim set out the case of the occupier (claimant). 

Once the claim has been issued, an occupier seeking an urgent order will be able to take out an application for an immediate hearing and file a draft of the injunction being sought.[3] The representative for the claimant should help each witness to prepare a witness statement to explain what has happened.

Normally two days notice must be given of the hearing to enable the landlord to attend. In emergencies an injunction may be obtained without notice to the landlord in what is known as an 'application without notice'.[4]

If the judge grants an injunction in response to an application without notice, it will usually last for a few days or a week. This gives time for the defendant (landlord) to be served with a copy of the order and for both sides to return to court to decide whether the injunction should remain in force until the hearing. If a landlord refuses to comply with an injunction they can be fined or imprisoned for contempt of court.[5]

Damages: Statutory damages under s.27 Housing Act 1988

Under section 27 of the Housing Act 1988, a 'residential occupier' can claim damages if they are unlawfully evicted or have to leave because of harassment from the landlord. If a tenant is unlawfully evicted but then reinstated before the date on which final court proceedings take place, they will not be entitled to section 27 damages.[6]

'Residential occupier' refers to anybody occupying under a fixed term and/or a tenancy or licence which is not an excluded tenancy or licence.[7] A 'landlord' is a person who, but for the occupier's right would be entitled to occupy the premises.[8]

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.[9]

Defence

The landlord has a defence to the claim for damages if:[10]

  • the landlord reasonably believed that the tenant had ceased to reside in the premises at the time they were deprived of occupation or

  • (in cases of harassment) they had reasonable grounds for their actions.

Calculation of statutory damages

The level of damages are assessed under section 28 Housing Act 1988 and can be substantial, 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:[11]

  • the landlord is selling their interest on the open market to a willing buyer

  • neither the tenant nor a member of their family wishes to buy it, and

  • 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.[12] If the occupier is an assured shorthold tenant, the damages will not be high. In one case,[13] 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:[14]

  • there was unreasonable conduct by the tenant prior to the harassment or illegal eviction, or

  • before the proceedings started, the landlord offered to reinstate the tenant and it was unreasonable for the tenant to refuse that offer.

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'[15]

Damages: 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:

  • general damages are for physical injury, loss of occupation, general inconvenience, and suffering

  • special damages reflect the value of specific items of property that may have been destroyed or damaged eg 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

  • aggravated damages are for especially severe suffering, outrage or indignation at the way a person has been treated

  • 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.[16]

Level of common law damages

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).[17] 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'.[18] 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:

  • 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[19]

  • 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[20]

  • £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[21]

  • 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[22]

  • 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[23]

  • 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[24]

  • 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[25]

  • 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[26]

  • an occupier who complained about disrepair, unannounced inspections and bailiffs' enforcement due to the landlord's failure to pay for the utilities, and was locked out of the property, falsely accused of subletting, threatened with private prosecution, and had her belongings (including a passport) unlawfully disposed of by the landlord, was awarded £56,675.91 in compensation, including damages for harassment, illegal eviction and maximum penalty for non-protection of the tenancy deposit. Despite the fact that the occupier entered into a 'membership agreement' for accommodation, she was found to have been an assured shorthold tenant as she had exclusive possession of a room in a shared house and paid rent in the form of a regular 'contribution fee' to a non-resident landlord[27]

  • an assured shorthold tenant the landlord had illegally evicted was awarded £19,000, including £150 per night for 60 days that would have constituted a statutory notice period under section 21 of the Housing Act 1988.[28]

Last updated: 12 January 2021

Footnotes

  • [1]

    [1] Smith v Nottinghamshire CC, Times, 13 November 1981, CA (Civ Div).

  • [2]

    Civil Procedure Rules 25.2(2).

  • [3]

    Civil Procedure Rules Practice Direction 25 para. 5.3.

  • [4]

    Civil Procedure Rules 25.3(1).

  • [5]

    Part 23 of the Civil Procedure Rules and Order 29 rule 1 of the County Court Rules 1981.

  • [6]

    s.27(6) Housing Act 1988.

  • [7]

    s.27(9) Housing Act 1988.

  • [8]

    s.27(9) Housing Act 1988.

  • [9]

    Jones v Miah (1992) 24 HLR 578.

  • [10]

    s.27(8) Housing Act 1988.

  • [11]

    s.28(3) Housing Act 1988.

  • [12]

    Murray v Lloyd, The Times, 27th June 1989.

  • [13]

    Melville v Bruton [1996] EGCS 57, CA.

  • [14]

    s.27(7) Housing Act 1988; Wandsworth LBC v Osei-Bonsu [1998] EWCA Civ 1594.

  • [15]

    [15] Tagro v Cafane and Patel [1991] 23 HLR 250, CA.

  • [16]

    s.27(5) Housing Act 1998; Nwokorie v Mason [1993] 26 HLR 60 CA and Francis v Brown [1998] 30 HLR 143.

  • [17]

    Smith v Khan [2018] EWCA Civ 1137.

  • [18]

    Smith v Khan [2018] EWCA Civ 1137.

  • [19]

    Loveridge v Lambeth LBC [2014] UKSC 65.

  • [20]

    Kalas v Farmer [2010] EWCA Civ 108.

  • [21]

    Abbott v Bayley [1999], in Legal Action May 1999, on appeal 32 HLR 72, CA.

  • [22]

    Lord and Haslewood-Ogram v Jessop [1999], Legal Action, August 1999.

  • [23]

    Silva v Coelho [1998], Legal Action, March 1998.

  • [24]

    Melville v Bruton [1996] EGCS 57, CA.

  • [25]

    Naughton v Whittle and Chief Constable of Greater Manchester Police [2009], Legal Action, July 2010.

  • [26]

    Boyle v Musso, Bristol County Court, 25 October 2010, Legal Action, March 2011.

  • [27]

    Del Rio Sanchez v Simple Properties Management Limited. Central London County Court sitting at Oxford Combined Court. 24 February 2020; reported on the Nearly Legal blog on 1 March 2020.

  • [28]

    Regency (UK) Ltd v (1) Hussein Ali Hadi Albu-Swalin (2) Heartland Property Ltd [2019] EWHC 3713 (QB).