80 Birmingham Road Dudley DY1 4RF BIR/00CR/HMK/2019/0054
DECISION
[49]In the first instance the Tribunal considered the preliminary issue raised by the Respondent in its letter of 1st November 2019 and in the formal submission. The Respondent submitted that the identity of the Respondent was incorrectly noted in that it should be Hulhomes Property Investments Ltd, Company Number: 9194039, Second Floor, Regis House, 45 King William St, London EC4R 9AN and not Mr Daniel Hulbert and Mr Steven Smith as noted on the Application and on the Tribunal’s correspondence. The Respondent submitted that Mr Daniel Hulbert is the sole Director of the Company and that Mr Steven Smith resigned as a Director in December 2018.[50]The Tribunal considered the matter and noted that the name of the landlord on the tenancy agreements is either stated as being ‘Mr Dan Hulbert, Mr Steven Smith and Hulbert Investments Ltd’ or ‘Mr Dan Hulbert and Mr Steven Smith’.[51]The Tribunal considered the Upper Tribunal decision of Keith Goldsborough and Robert Swart and CA Property Management Ltd, Mr and Mrs Gardner [2019] UKUT referred to by the Respondent. In brief the Upper Tribunal determined that for a Respondent to have any liability to an RRO that person must be a landlord entitled to receive the rent on their own account.[52]The Tribunal does not consider the fact that Mr Steven Smith had resigned as a Director of the Company to be a relevant consideration. For at least part of the time the Applicants were in occupation, Mr Smith was a Director of the Company. At the time of submitting the Applications the Applicants could not reasonably be aware that Mr Smith and Mr Hulbert were not the correct Respondent’s and the validity of their Applications are not therefore adversely affected. However, based on the above the Tribunal determines that the Respondent is correctly identified as Hulhomes Property Investments Ltd and substitutes the company for the Respondents noted on the original Applications.[53]The Tribunal then considered the application in four stages –(i) Whether the Tribunal was satisfied beyond reasonable doubt that the Respondent had committed an offence under section 72(1) of the 2004 Act in that at the relevant time he was a person who controlled or managed an HMO that was required to be licensed under Part 2 of the 2004 Act but was not so licensed.(ii) Whether the Applicants were entitled to apply to the Tribunal for rent repayment orders.(iii) Whether the Tribunal should exercise its discretion to make rent repayment orders.(iv) Determination of the amounts of any orders.[54]In accordance with sections 43(1) of the 2016 Act, the Tribunal was not satisfied beyond reasonable doubt that the Respondent, as landlord of the subject property, had committed an offence listed in section 40 of the 2016 Act, namely an offence under section 72(1) of the 2004 Act. In fact, the Tribunal finds that the reverse is true as the Respondent applied for an HMO licence on 28th September 2018 (which was prior to the Act coming into effect on 1st October 2018) and that this application was subsequently granted by Dudley Council.[55]The Tribunal determined that the Applicants were not therefore entitled to apply for Rent Repayment Orders pursuant to section 41(1) of the 2016 Act.[56]However, the Tribunal is concerned that there is no evidence that the Respondent has, at any time, informed the Applicants that an Application for an HMO Licence had been submitted on 28th September 2018. Indeed, it is confirmed in the written submission of Mr Ellison (letter of 22nd October 2019) that he was only contacted by Genie rooms by a phone call on 10th October 2019 to inform him that ‘they had applied for everything required when they needed to have and they do not recommend me wasting my money by going through with the case even though they were adamant they were not trying to persuade me not to…..’.[57]It is the opinion of the Tribunal that the Respondent should have informed the Applicants at the outset that an application for an HMO Licence had been submitted on 28th September 2018 and certainly the telephone call to Mr Ellison on 10th October 2019 should have made that clear. Instead it appears that the Respondent has been somewhat vague in the information given to the Applicants. Had the Respondent fully explained the position to the Applicants they would have had an opportunity to investigate the position and would possibly not have submitted the Applications. As it is, they have effectively wasted the application fees of £100.00 each.[58]The Tribunal therefore determined that the lack of basic information given to the Applicants has effectively cost them £100.00 each and the Tribunal therefore orders the Respondent to reimburse both Applicants with the sum of £100.00 under Rule 13(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 within 14 days of the date of this decision. APPEAL[59]Any appeal against this decision must be made to the Upper Tribunal (Lands Chamber). Prior to making such an appeal an aggrieved party must apply in writing to the First-tier Tribunal for permission to appeal within 28 days of the date specified below stating the grounds on which that party intends to rely in the appeal. Date: 12th December 2019 Graham Freckelton FRICS Chairman First-tier Tribunal (Property Chamber)