Haniff v Robinson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WOOLF,THE MASTER OF THE ROLLS,LORD JUSTICE LEGGATT |
| Judgment Date | 09 June 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0609-4 |
| Docket Number | 92/0569 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 June 1992 |
[1992] EWCA Civ J0609-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EDMONTON COUNTY COURT
(His Honour Judge Cox)
Royal Courts of Justice
The Master of The Rolls
(Lord Donaldson)
Lord Justice Woolf
and
Lord Justice Leggatt
92/0569
CCRTF/91/1625/E
MISS I. MARSHALL (instructed by Messrs Craigen Wilders & Sorrell, London, N22) appeared on behalf of the Appellant/Plaintiff.
MR. D. WATKINSON (instructed by Messrs Norton & Co., Edmonton, London, N22) appeared on behalf of the Respondent/Defendant.
This appeal raises a single issue as to whether a landlord who has obtained an order for possession in the county court against the statutory tenant is entitled to resort to self-help and take possession of the premises himself without involving the bailiff in executing the order for possession.
The issue arises on this appeal because, on 25th May 1991, His Honour Judge Cox in the Edmonton County Court determined this issue against the plaintiff landlord and awarded the defendant, his former statutory tenant, the sum of £28,300 odd, including interest, in her counterclaim, partly in respect of her claim for unlawful eviction under section 27 of the Housing Act 1988.
The facts so far as relevant are not in dispute, the judge having rejected the evidence of the former landlord, the plaintiff, Mr. Hassan, and accepted the evidence of the former tenant, the defendant, Miss Susan Robinson. The landlord owned No. 36 Ferndale Road, London, N15. On 6th December 1988 he entered into a tenancy agreement with Miss Robinson under which she was entitled to occupy the premises for a period of six months. The contractual tenancy therefore came to an end by effluction of time on 6th June 1989. After 6th June 1989 the tenant remained in possession. The landlord served an invalid notice to quit which does not affect the situation. In September 1989 the tenant visited the United States, returning in November 1989. Without her knowledge, in August 1989 the landlord had issued proceedings, wrongly contending that he was a resident landlord. The proceedings did not come to the defendant's notice until after she returned from the United States. In her absence a possession order was made on 31st October 1989 to take effect on 28th November 1989. The day before it was due to take effect, the tenant, having learnt of the order, made an application to set aside the order for possession and the judgment which had resulted in that order. The landlord was aware of the fact that she had made that application but, notwithstanding that, on 4th December 1989 he applied for execution. On 24th December 1989 he forcibly ejected the tenant. On 22nd January 1990 the possession order which had been made was set aside.
For the purposes of this appeal, it is not necessary to take account of the implications which arise or could arise as a result of the possession order being set aside. However, the facts of this case do illustrate the injustice which could arise if Miss Marshall is correct in the admirable submissions which she has advanced on behalf of the landlord, to the effect that in this case he was entitled to resort to self-help.
As regrettably is often the case where Rent Act issues are involved, the answer to the issue identified at the beginning of this judgment requires an undesirably tortuous journey through a number of statutory provisions. It is convenient to start at the end of that journey and work backwards from the provisions dealing with unlawful eviction which resulted in the order for damages being made in the court below. The starting point is section 27 of the Housing Act 1988. Subsection (1) of that section provides:
"This section applies if, at any time after 9th June 1988, a landlord (in this section referred to as 'the landlord in default') or any person acting on behalf of the landlord in default unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises."
I emphasise the word "unlawfully" in that subsection and the words "residential occupier". Subsection (2) contains a similar provision to that contained in subsection (1), which it is not necessary to cite. Subsection (3) is important and provides:
"Subject to the following provisions of this section, where this section applies, the landlord in default shall, by virtue of this section, be liable to pay to the former residential occupier in respect of his loss of the right to occupy the premises in question as his residence, damages assessed on the basis set out in section 28 below."
I draw attention to the words "right to occupy". Subsection(4) indicates that the liability for damages shall be in the nature of a liability in tort. Subsection (9) (a) contains a definition of residential occupier, the relevant words being:
"'residential occupier' in relation to any premises, has the same meaning as section 1 of the 1977 Act."
Section 1 of that Act states that:
"…'residential occupier' in relation to any premises, means a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises."
The important words so far as this appeal is concerned are the words "any enactment or rule of law…restricting the right of any other person to recover possession of the premises". Any other person in this context would apply to the landlord. Section 28 sets out the measure of damages. It is not necessary to refer to the terms of that section.
We can leave the 1988 Act and proceed to the 1977 Act, bearing in mind that the issue in this case was whether there was a person, namely, the landlord, who was restricted in his right to recover possession of the premises by virtue of an enactment or rule of law. Section 1 of the 1977 Act provides:
"Subject to this Part of this Act, a tenancy under which a dwelling-house…is let as a separate dwelling is a protected tenancy for the purposes of this Act."
Section 2(1) (a) provides:
"Subject to this Part of this Act—
(a) after the termination of a protected tenancy of a dwelling-house the person who, immediately before that termination, was the protected tenant of the dwelling-house shall, if and so long as he occupies the dwelling-house as his residence, be the statutory tenant of it."
Applying sections 1 and 2 to the facts of this appeal, the position is that for the first six months (the period of the original letting) the tenant was a protected tenant. Thereafter, she became a statutory tenant under section 2(1) (a), and giving the words of that subsection their natural meaning, it would appear that she was by the Act to remain a statutory tenant so long as she continued in occupation of the dwelling-house.
Miss Marshall contends, however, that that is not the effect of the subsection. She contends that the tenant ceased to be a statutory tenant for the purposes of the subsection when the possession order was made in the county court or, alternatively, when the possession order took effect or, alternatively, when her client applied for the warrant of execution. She submits that she obtains support for that approach from two decisions. The first of those decisions is Brown v. Draper [1944] KB 309 and the second of those decisions is American Economic Laundry Ltd v. Little [1951] 1KB 400. It is only necessary to refer to the second of those cases which were decisions of this court, because in the judgments in the second of those cases, reference is made back to the case of Brown v. Draper. In the American Economic Laundry case, a final order for possession had been made but that order for possession had been suspended. During the period of suspension the tenant died. The tenant having died, his daughter sought to rely on the provisions which would give her the right to succeed to the statutory tenancy. Reading from the headnote, it was held:
"that, although, by the indulgence of the court, a statutory tenant might be permitted to continue to occupy premises after the making of an order for possession, he was not, during such a period of occupation, a statutory tenant with all the rights to protection conferred by the Rent Restriction Acts which he had enjoyed before the order for possession was made; and consequently, the daughter could not claim protection as a 'tenant' under s.12 sub-s (1)", that being a reference to the then relevant legislation.
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