Unlawful eviction damages = value diff (HA 1988 s. 28)
Damages = difference in landlord's interest value with/without occupier's right, assuming open market sale, no family buyer, no substantial development.
Official text
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HA 1988 s. 28 — United Kingdom
The basis for the assessment of damages referred to in section 27(3) above is the difference in value, determined as at the time immediately before the residential occupier ceased to occupy the premises in question as his residence, between— the value of the interest of the landlord in default determined on the assumption that the residential occupier continues to have the same right to occupy the premises as before that time; and the value of that interest determined on the assumption that the residential occupier has ceased to have that right. In relation to any premises, any reference in this section to the interest of the landlord in default is a reference to his interest in the building in which the premises in question are comprised (whether or not that building contains any other premises) together with its curtilage. For the purposes of the valuations referred to in subsection (1) above, it shall be assumed— that the landlord in default is selling his interest on the open market to a willing buyer; that neither the residential occupier nor any member of his family wishes to buy; and that it is unlawful to carry out any substantial development of any of the land in which the landlord’s interest subsists or to demolish the whole or part of any building on that land. In this section “ the landlord in default ” has the same meaning as in section 27 above and subsection (9) of that section applies in relation to this section as it applies in relation to that. Section 113 of the Housing Act 1985 (meaning of “members of a person’s family”) applies for the purposes of subsection (3)(b) above. The reference in subsection (3)(c) above to substantial development of any of the land in which the landlord’s interest subsists is a reference to any development other than— development for which planning permission is granted by a general development order for the time being in force and which is carried out so as to comply with any condition or limitation subject to which planning permission is so granted; or a change of use resulting in the building referred to in subsection (2) above or any part of it being used as, or as part of, one or more dwelling-houses; and in this subsection “ general development order ” has the meaning given in section 56(6) of the Town and Country Planning Act 1990 and other expressions have the same meaning as in that Act.
Section 28 supplies the arithmetic for section 27, and it is unlike almost any other damages rule in housing law. The measure is the difference in value of the landlord's interest, taken immediately before the occupier ceased to occupy, between two valuations: the interest valued on the assumption that the occupier continues to have the same right to occupy, and the interest valued on the assumption that they have ceased to have it. In other words the landlord hands over the profit that getting the occupier out would have produced.
Subsection (2) defines the relevant interest generously: the landlord's interest in the whole building in which the premises are comprised, together with its curtilage - not just the flat. Subsection (3) fixes the assumptions for the valuation: the landlord is selling on the open market to a willing buyer; neither the occupier nor any member of their family wishes to buy; and it is unlawful to carry out any substantial development of the land or to demolish any building on it. That last assumption stops a landlord arguing the site was worth the same either way because it was going to be knocked down.
The practical consequence is that the size of the award depends on how much a vacant property is worth compared with an occupied one, which varies enormously by tenure and location. Where the occupier had little security, the difference may be small; where they had a protected or long-standing tenancy in a valuable building, it can be very large. Both figures are matters of valuation evidence, so a claim under sections 27 and 28 usually needs a surveyor.
When it applies
Valuing a claim after an unlawful eviction from a flat in a house in multiple occupation.
An eviction from a property the landlord wanted vacant in order to sell.
Working out whether the section 28 measure is likely to beat ordinary damages.
A landlord facing a claim and needing valuation evidence of their own.
An occupier with limited security wondering why the statutory measure may be modest.
What this section does not say
×It does not compensate for distress, inconvenience or the cost of emergency accommodation. Those are claimed on ordinary principles, not through this section.
×It is not a fixed sum or a multiple of the rent. It is a valuation difference, and it needs valuation evidence.
×It does not apply where liability under section 27 has been extinguished by reinstatement.
×It does not value only the flat. Subsection (2) directs the valuation at the landlord's interest in the whole building and its curtilage.
×It does not allow the landlord to assume redevelopment. Subsection (3)(c) requires the assumption that substantial development and demolition are unlawful.
Worked examples
Invented situations, written to show how the wording bites. They are not real cases, not judgments and not precedent, and nothing here predicts what would happen in yours.
Illustrative example
An occupier is unlawfully evicted from a room in a large house that the owner was trying to sell with vacant possession. They want to understand what a damages claim would actually be worth.
How the wording applies
Section 28 does not award a multiple of the rent or a sum for distress. It measures the difference between the landlord's interest valued on the assumption the occupier still has the right to occupy and valued on the assumption they do not, taken immediately before they ceased to occupy. Subsection (2) directs that at the landlord's interest in the whole building and its curtilage. The fact that drives the figure is therefore how much more the building is worth empty than occupied - a valuer's question, and the reason two evictions on identical facts can be worth very different sums.
How the parties settled it
The parties instruct a single jointly agreed valuer and agree in advance to settle at the midpoint of that valuation, plus the occupier's out-of-pocket costs of moving.
Illustrative example
A landlord facing a claim argues that the site was earmarked for demolition and redevelopment, so the property was worth the same whether the occupier was there or not.
How the wording applies
Subsection (3) fixes the assumptions for the valuation, and the third of them is that it is unlawful to carry out any substantial development of the land or to demolish any building on it. The fact that answers the landlord's argument is that assumption: the valuation is done on that footing whatever the actual plans are, precisely to stop redevelopment prospects flattening the difference between the two figures.
How the parties settled it
The landlord accepts a valuation prepared on the statutory assumptions and pays the assessed sum in two instalments, with the occupier making no further claim arising from the eviction.
The same problem elsewhere
The other legal systems in this collection answer the same everyday problem with their own provisions.
The comparison and these one-line summaries are in English.
Locked out: the landlord changed the locks and cut the power, in 7 jurisdictions
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This page reproduces the text of HA 1988 s. 28 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.