ASLAN v MURPHY

In order to enjoy the protective nature of exclusive possession from the powers of the Rent Act 1977, it must first be established what type of contractual arrangement has been agreed.

In this instance, the Court of Appeal decided upon two cases where landlords seeking possession were subject to examination.

Aslan v Murphy (No 1 and No 2)

Having entered into a living arrangement with the landlord of a hotel, the appellant was granted use of a basement room, while deprived of many freedoms in lieu of strict usage controls.

The extent of those restrictions included a ninety-minute window, where the appellant was denied access to the room, as well as having to surrender the room keys to the respondent when leaving the room.

It was thus argued that the contract was between a licensor and licensee, as opposed to that of landlord and tenant.

This alteration of rights prevented the appellant from retention of occupancy under the Rent Act 1977; and so, having sought repossession of the room, the matter went to court, whereupon the necessary order was granted prior to an appeal, where the Court found that tenancy rights did exist.

Around the same time, the local authority served a closing order against the respondent upon grounds that the room was unfit for human occupancy and therefore unable to stand as chargeable for rents, as per section 266 of the Housing Act 1985.

This led to a second possession order in favour of the respondent; however, in order to secure alternative accommodation through the local authority, the appellant requested that the courts declared the actual nature of the contract as no notice to quit had been served, and that the appellant was now protected through exclusive possession until such time as notice was given.

Relying upon section 276 of the 1985 Act, the respondent countered that the power of the closing order negated any right to exclusive possession, while under section 277 of the same Act, it was further contended that any continued occupancy by the appellant constituted a criminal offence, subject to occupancy penalties. 

Put before the Court of Appeal, it was held that until clarification of the contract could be ascertained, there could be no effect to the possession order, despite the powers claimed under the Housing Act 1985; and that until such time, neither party could pursue their own ends.

Duke v Wynne

In this case, the relationship was that between a homeowner and a family in need of accommodation, while the contract entered into was one where the respondent reserved the right to terminate the arrangement on or around a two-year period.

Due to the generous size of the property, there was also express denial of exclusive possession within the terms of the contract, due to a provision for additional parties to share the home at the privilege of the respondent.

During the two years in which they remained in occupancy, the appellants used the whole of the house; and at no point, did any new occupiers enter the property, despite such prohibition.

At the point in which the respondent sought possession following her decision to emigrate, it was contested by the appellants that with no alternate means of accommodation, and having had free reign of the house, they were now entitled to remain in occupancy with exclusive possession under the terms of the Rent Act 1977.

Having considered the wording of the contract and the manner in which the appellants had been allowed to reside, it was held by the Court that without any evidence of shared occupancy, the appellants had by virtue of their liberties, enjoyed exclusive possession of the home for the duration of the time passed; and that vacant possession was not legally enforceable, failing any notice to quit, while reminding the parties that:

“[T]here are materials from which it is possible to infer that the occupier is a lodger rather than a tenant. But the inference arises not from the provisions as to keys, but from the reason why those provisions formed part of the bargain.”

TRESPASS

To clarify, there are two types of trespass, namely trespass to the person and trespass to land; and so here we will begin by looking at trespass to the person.

Trespass to the person
Trespass to the person includes three torts, ranging from (i) battery (ii) assault and (iii) false imprisonment, as first truly defined by Goff LJ in Collins v Warlock when he said:

“An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint upon another’s freedom of movement from a particular place.”

Collins v Warlock

(i) Battery
While claiming accidental causes, the defendant in Williams v Humphrey was found liable for battery after pushing the victim into a swimming pool, whereupon the claimant broke his ankle. Given that the intention to push the victim was present, no argument to the contrary could reasonably stand and so damages were awarded.

(ii) Assault
In R v Ireland, a number of women subjected to continuous psychological damage through repeated abusive phone calls, were given the right to claim for assault, even though they never met the defendant in person. When reaching summary judgment, it was remarked by Hope LJ that:

“If the words or gestures are accompanied in their turn by gestures or by words which threaten immediate and unlawful violence, that will be sufficient for an assault. The words or gestures must be seen in their whole context.”

R v Ireland

(iii) False Imprisonment
While reminiscent of physical imposition, this tortious facet involves the restriction of liberty and movement of an individual, while as many might expect, there are cases where over extension of a prison sentence will suffice, however mere isolation or deprivation of escape will also apply.

It is important to note that while the victim may only fear these actions yet not necessarily fall subject to their physical consequences, psychological harm, where proven, will suffice under a claim.

Unlike the tort of negligence, trespass to the person relies upon intention, actual harm and obvious effect, and so victims are compensated not for unintentional damage, but that caused with deliberation.

Trespass to land
Similarly, trespass to land addresses deliberate actions by those subject to it, while primary focus is placed upon the protection and preservation of land or property.

Harm is treated as one stemming from interference with a right to privacy and occupation, and so while possession of the land is imperative to a successful claim, there are (as with trespass to the person) four distinct categories of interference, namely (i) crossing a boundary, (i) remaining on land, (iii) exceeding permissions associated with land and (iv) placing objects upon land without express consent of the owner.

(i) Crossing boundaries
Undoubtedly the more common complaint is one of boundary violation (see Entick v Carrington), and while often focussed upon overgrown foliage or other such matters, there are also incidents where property intrudes into the airspace of land.

As an example, in Anchor Brewhouse Developments Ltd v Berkley House (Dockland Developments) Ltd where a contractor’s crane overswung into a neighbouring property, thus prompting a supported claim for trespass through ‘airspace’.

(ii) Remaining on land
In Jones v Persons Unknown, the freeholders of unregistered land were forced to serve eviction notices after a group of ‘fracking’ protestors set up residence and refused to leave. While claiming to be protecting the land on which they had become entrenched, the defendants were ultimately evicted under the award of a possession order on grounds of trespass.

When outlying the justification for the order, the judge remarked:

“[T]here is simply no evidence that they gave any relevant consent to the occupation of their land which would preclude the claimants from seeking to recover it back…he was in unlawful possession of the claimants’ land, and thus amenable to a claim in trespass and the costs associated with such a claim. It would be to allow him, and others in a similar position, effectively to get away with acts of trespass if they were not required to pay the costs of consequent legal proceedings.”

Jones v Persons Unknown

(iii) Exceeding permissions (trespass ab initio)
When a party enters owned land under agreement, but then proceeds to potentially outstay that welcome through unlawful or abusive actions, the owner is entitled to claim trespass from the point at which the visitor caused offence.

In a case called The Six Carpenters, a number of carpenters entered an inn before ordering and paying for wine and bread; however, things took a turn for the worse when after ordering more wine they refused to pay for it; thus instigating a unsuccessful claim for trespass damages by the landlord when the court held:

“[F]or not paying for the wine, the defendants shall not be trespassers, for the denying to pay for it is no trespass, and therefore they cannot be trespassers ab initio…”

The Six Carpenters

(iv) Placing objects
In Arthur v Anker, the deliberate placement of an oil tanker and flower pots along a boundary wall caused tensions between neighbours, until a claim for trespass led to an injunction to remove the objects, despite several months between their placement and the litigation.

In surmising the judgment, Aldous J emphasised that:

“[T]here is no evidence that such inaction in respect of the oil tank, or any inaction in respect of the flower pots, caused Mr. Stones to believe that he could maintain the tank on the wall situated as it is…He placed the tank upon the wall himself and in my view it could not be seriously suggested that there was detriment in not objecting immediately and now requiring him to remove it.”

Arthur v Anker