A county court has found that a social landlord unlawfully evicted their tenant and has ordered the landlord to pay over £145,000 in damages.

A county court has found that a social landlord unlawfully evicted their imprisoned tenant and has ordered the landlord to pay over £145,000 in damages.

The order was made in the case of Khan v Notting Hill Genesis, in which it was held that Notting Hill Genesis ("NHG") were unable to show that their tenant Mr Khan's assured tenancy had been surrendered by deed or by operation of law when it was treated by NHG as having been transferred into his wife's sole name.

The facts

In 2010, Mr Khan was granted an assured tenancy of a flat in his sole name. In 2016, he married Oleta with whom he had a daughter in 2017. Two days before his daughter was born, Mr Khan was arrested for drugs offences for which he was convicted and subsequently sentenced to 22 years imprisonment. Oleta wished to remain living in the property with their daughter but believed that she needed to be a tenant in order to be eligible to claim the benefits she required to pay the rent with Mr Khan in prison. Mr Khan asked NHG for Oleta to be added to the tenancy. In August 2019, NHG provided Mr Khan with a document (which could not be produced by either party at trial), stated to be for the purposes of adding a joint tenant. Mr Khan signed it, but NHG failed to take any further action.

Significant rent arrears accrued and in February 2020, NHG served a Notice Seeking Possession on Mr Khan. On the same date, NHG provided Oleta with a Deed of Assignment and separate letter. Again, neither document could be produced by the parties. Mr Khan accepted that he had signed something that had been brought to him in prison by Oleta at around that time but denied that it was a Deed of Assignment that assigned his tenancy to Oleta solely.

However, from around February 2020, NHG treated Mr Khan's tenancy as being in Oleta's sole name. Their records were updated so the tenancy showed as being in her sole name, and NHG declined to take calls from Mr Khan about issues relating to the tenancy as he was said to not be their tenant.

Mr Khan and Oleta divorced in September 2020 and Oleta surrendered the tenancy in February 2022. The property was re-let. Mr Khan brought a claim for unlawful eviction.

The Court's decision

An assured tenancy can be ended where the acts of the tenant and landlord are inconsistent with the continuation of the tenancy. Both parties must act unequivocally and in such a way to treat the tenancy as ended.

The Court rejected NHG's argument that Mr Khan had surrendered the tenancy when he requested Oleta to be named on the tenancy so that she could claim benefits to assist paying the rent. The Judge held that Mr Khan's actions demonstrated that he made it clear he wanted Oleta to be added to the tenancy and did not intend to be replaced by her. There was no completed assignment and whilst the rent account was changed by NHG into to Oleta's name, it referenced the original tenancy start date in 2010 and included arrears accrued by Mr Khan that led to the notice being served in February 2020. Further, the Judge held that there was 'nothing unequivocal at all in the landlord's actions. What one has here is the exact opposite. A scenario of lack of clarity and confusion about what should be done and what was being done and why'.
The Court found that Mr Khan was wrongly deprived of the tenancy from February 2020 when NHG treated Oleta as the sole tenant and had been unlawfully evicted.

The Judge's assessment of statutory damages pursuant to section 27 Housing Act 1988 was £123,000, following a 40% deduction for an abatement for Mr Khan's criminal conduct that put the tenancy at risk. After a further reduction for his rent arrears to February 2020 but an uplift for Mr Khan having beaten a Part 36 offer made during the proceedings, NHG were ordered to pay Mr Khan £145,800.89.

What does this mean for social landlords?

This case and the high level of damages awarded highlights the importance of landlord's obligation to ensure that they manage the termination or assignment of tenancies in a lawful and properly documented manner. A robust strategy to deal with these issues is a must, and it is critical those policies are complied with. The Court was scathing of NHG's 'administrative and managerial incompetence' and made wider criticism of their original approach of looking towards the eviction Mr Khan and his family rather than assisting them to sustain the tenancy despite his lengthy imprisonment.

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