Judge orders landlord to return possession to tenant

Carmel Ferguson, Solicitor with Housing Rights Service, casts her eye over a recent Chancery case, Saverese v Fraser Homes Ltd 2014 [2015] NICh 2, where a tenant of a commercial lease took action against his landlord for recovering possession of a property without following the proper procedures. 

Landlord changed locks unlawfully

The case involved a commercial lease rather than a residential property ,but the issues raised are relevant in all cases where possession has been wrongly taken. Mr Justice Deeny considered an application by a tenant for an injunction to compel his landlord to surrender possession of property back to the tenant. The tenant owed considerable rent-three years rent on a 10 year lease, amounting to approximately £30,000.

An order for possession was granted and a stay imposed until 5^th December 2014. In the meantime, the Insolvency Service became involved in the matter and mistakenly served notice on the tenant to cease trading in the premises. The landlord’s agent then, apparently acting subsequent to the actions by the Insolvency Service, changed the locks on 30^th October 2014 and advised the tenant through a security guard that any attempt to enter the premises would be a criminal act.

Concern that landlord's interests were being "prejudiced"

In defending the tenant’s application for an injunction, the landlord’s counsel “was not in a position to submit that the landlord’s agent ‘s actions were lawful” but said they “were taken because of genuine concern that the landlord’s interests were being prejudiced in the context of the non-payment of rates by the plaintiff’s company and the winding up of the related company”.

The court considered whether “in effect…it would be unfair on the landlord to put the [tenant] back in possession when he is unlikely to pay any rent for the period he was back in possession and when he owed so much already”

The Judge ordered that the landlord must return possession of the property to the tenant, along with any property which had been taken. He also ordered that the tenant was entitled to remain in the property for at least 22 days to make up for the time in which he had lost possession. The order was made subject to undertakings from the tenant regarding part payment of arrears.

In his summary Judge Deeny stated that this outcome “upheld the rule of law..or more narrowly  that landlords must not take possession otherwise than in accordance with the law”.