Smith v Khan

Damages for unlawful eviction compensate for loss of possession and for the anxiety, inconvenience and mental stress involved in losing a home. Contractual rent may be a cross-check, but it is not the sole measure. Comparable awards guide the assessment without operating as strict precedents.

A surrender by operation of law requires unequivocal conduct. Mere absence from the premises, including absence for work, is insufficient. A spouse’s home rights under the Family Law Act 1996 are co-extensive with the tenant’s tenancy, and the spouse’s occupation may preserve assured-tenancy status. Damages continue while the right to possession subsists, but end when that right ends.

Mrs Smith was the wife of Mr Smith, the tenant of a flat let by Mr Khan under an assured shorthold tenancy. After Mr Smith went to Scotland, Mr Khan changed the locks and excluded Mrs Smith without obtaining a possession order. A District Judge found that the tenancy had not been surrendered, treated the flat as the marital home, and awarded damages for unlawful eviction and related losses.

On appeal, HH Judge Robert Owen QC held that the tenancy had been surrendered, limited damages to 28 days, and substituted a daily rate of £130. Mrs Smith appealed against the finding of surrender and the period of damages. Mr Khan cross-appealed against the daily rate. The central issues were whether the tenancy continued, how long Mrs Smith’s right to possession subsisted, and the proper measure of damages for trespass.

Patten LJ delivered the judgment, with Henderson and Newey LJJ agreeing. Mrs Smith’s appeal was allowed and Mr Khan’s cross-appeal was dismissed. The order of 2 June 2016 was set aside, and general damages for trespass were awarded at £130 per day from 15 April to 30 June 2015 inclusive, amounting to £9,880.

1. Surrender. A surrender by operation of law requires conduct by the tenant that unequivocally demonstrates abandonment or termination of the tenancy. The principle in Ealing Family Housing Association Ltd v McKenzie [2003] EWCA Civ 1602 was applied. Mr Smith’s absence in Scotland, his work there, and his failure to challenge the landlord’s notice did not establish surrender. The District Judge had found that he had given no indication of an intention to surrender, that Mrs Smith remained in the matrimonial home, and that possessions remained there.
2. Home rights and continuation. Under section 30 of the Family Law Act 1996, Mrs Smith’s occupation rights were co-extensive with her husband’s tenancy. Under section 30(4)(b), her occupation was treated for the purposes of the Housing Act 1988 as occupation by Mr Smith. His absence therefore did not itself end the assured tenancy or defeat the condition that the property remained his principal home.
3. Period of damages. Trespass damages are compensatory and continue while the claimant’s right to possession subsists. The tenancy continued to the end of its fixed term on 30 June 2015. By then, however, neither spouse was seeking to regain possession, Mrs Smith had collected her belongings, and Mr Smith had not asserted his tenancy. The tenancy therefore ended at the expiry of the fixed term and damages could not extend beyond that date. The Protection from Eviction Act 1977 confirmed the unlawfulness of the eviction but created no separate damages cause of action and did not prolong the right to occupy.
4. Measure of damages. Statutory damages under section 27 of the Housing Act 1988 are restitutionary and distinct from damages for trespass. The latter must reflect not only letting value but also anxiety, inconvenience and mental stress. Wallace v Manchester City Council [1998] 30 HLR 1111, concerning breach of a repair covenant, did not justify treating rent as the primary measure. The District Judge’s award of £40 per night was substantially too low. Judge Owen was entitled to substitute £130 per night.

• Court of Appeal (Civil Division): in [2018] EWCA Civ 1137, allowed Mrs Smith’s appeal, dismissed Mr Khan’s cross-appeal, set aside the order of 2 June 2016, and awarded £9,880 general damages for trespass.
• Nottingham County Court and Family Court: HH Judge Robert Owen QC’s order of 2 June 2016 found an implied surrender, limited the damages period to 28 days, and substituted a daily rate of £130.
• County Court: District Judge Nicolle’s judgment of 14 December 2015 found no surrender, upheld Mrs Smith’s home rights, and awarded damages for unlawful eviction and related losses.