BREM v MURRAY & ANOR

An implied covenant for quiet enjoyment protects a tenant against interference by the immediate landlord or persons claiming under that landlord. It does not generally impose a positive duty to prevent an independent third party from evicting or disturbing the tenant. Liability for a statutory or common-law tort must have a clear legal basis, supported by the pleaded case, the evidence and the findings. An appellate court should not construct an opaque basis of liability after trial. Where a defendant merely stands by while another person carries out an unlawful eviction, liability cannot be imposed without identifying the defendant’s own actionable conduct or a separate legal duty.

Ms Murray occupied a room in a flat under an arrangement with Mr Brem, who rented the flat from Mr Marchant. After Ms Murray complained about the condition of the premises, Mr Marchant changed the locks and removed or damaged her possessions. Mr Brem was present, was himself locked out, and stood by while the eviction occurred.

The County Court held both defendants liable, awarding Ms Murray special damages jointly and severally and general damages against each defendant. Mr Brem appealed, contending that the findings did not establish breach of the implied covenant for quiet enjoyment, statutory liability, or tortious liability.

1. Appeal allowed. The County Court’s order was set aside insofar as it imposed liability on Mr Brem for the special damages, £1,000 general damages and Ms Murray’s costs.
2. The only legal basis identified by the County Court for Mr Brem’s liability was breach of the implied covenant for quiet enjoyment. The authorities, including Kenny v Preen [1962] 1 QB 499, establish that the covenant protects against interference by the landlord or persons claiming under the landlord. It does not impose an absolute obligation to prevent third-party interference, nor a positive obligation to intervene unless a separate positive legal duty is identified.
3. On the findings, Mr Marchant—not Mr Brem—changed the locks and carried out the eviction and destruction of property. Mr Brem’s failure to prevent those acts did not, without more, amount to breach of covenant. The reasoning in Hafton Properties Ltd v Camp [1995] 1 EGLR 67 was consistent with that conclusion.
4. The statutory provisions of the Protection from Eviction Act 1977 and the Housing Act 1988 did not provide a basis for liability on the facts found. They did not impose liability merely for failing to prevent another person’s acts, and no relevant act or causation by Mr Brem was identified.
5. Drane v Evangelou [1978] 1 WLR 455 did not justify the result. That case involved an identified tortious basis, namely trespass, and the relevant issue had been addressed at trial. The present case was factually and procedurally different. It was fundamentally unfair to impose tortious liability where the basis had not been clearly pleaded, put to Mr Brem or explained in the judgment.

1. County Court at Basildon: On 13 May 2021, HHJ Holt held Mr Marchant and Mr Brem liable for Ms Murray’s unlawful eviction and awarded damages and costs.
2. High Court (Queen’s Bench Division): Permission to appeal was granted on 3 February 2022. The appeal was allowed, and the order was set aside insofar as it imposed liability on Mr Brem.