13 Myrtle Avenue Nottingham NG7 6NR BIR/00FY/HMJ/2024/0005
DECISION
[1]This is a decision on an application for a rent repayment order under section 41 of the Housing and Planning Act 2016 (“the Act”).[2]The Applicant is the former tenant of a room at 13 Myrtle Avenue, Nottingham, NG7 6NR (“the property”). The Respondent is the owner of the property.[3]By Application dated 23rd September 2024, the Applicant applied to the Tribunal for a rent repayment order under section 41(1) of the Act. He alleges that the Respondent was controlling or managing the property which was required to be licensed under Mandatory House in Multiple Occupation Licensing but was not licensed.[4]The order sought was in respect of rent he had paid as tenant of the property for the period 1st October 2022 – 30th September 2023.[5]The Tribunal issued Directions on 14th October 2024 following which submission were made by both parties. THE PROPERTY INSPECTION[6]The Tribunal directed that an inspection of the property was carried out and this took place on 19th March 2025 in the presence of the Respondent.[7]The Property was a mid-terraced house of brick construction surmounted by a pitched roof to the main house and flat roofs to the rear ground floor kitchen and first floor shower room extensions.[8]Briefly the accommodation comprises of an entrance hall with stairs off to the first floor. The hallway leads to a front bedroom (previously occupied by the Applicant) and rear communal dining room.[9]The room previously occupied by the Applicant is a bay fronted bedroom with a small en-suite shower room being fitted with a shower cubicle, W.C and wash hand basin.[10]The dining room leads to the kitchen which is fitted with a range of base and wall cupboards incorporating a sink unit, two hobs and one cooker. A door from the kitchen leads to the cellar. A further door leads to the small rear yard.[11]On the first floor the landing leads to two bedrooms, one of which has a small shower room with a shower cubicle, W.C and wash hand basin. There is also a separate communal shower room being fitted with a shower cubicle having an electric shower, W.C and wash hand basin.[12]On the second floor the landing leads to two further bedrooms, one of which has a small en-suite shower room being fitted with a shower cubicle, W.C. and wash hand basin.[13]The house has gas fired central heating and UPVC double glazing throughout. There is a communal smoke/fire alarm system and emergency lighting.[14]As detailed above, the room occupied by the Applicant was located to the front of the property on the ground floor. In particular the Tribunal noted the ‘crack’ to the wall over the bed referred to by the Applicant and found this to be a plaster ‘shrinkage’ type crack found in many properties. It was of minimal width and was not a structural defect. It could easily be remedied by either re-decoration or, if necessary, a minimal amount of filler and re-decoration.[15]The Tribunal also inspected the walls of the Applicants’ room as in his submissions he referred to hearing ‘rats in the walls’. The Tribunal noted that all the walls were solid and that there were therefore no spaces to which rats or any other vermin could access.[16]A hearing was held at Nottingham Justice centre following the inspection. The hearing was attended by both the Applicant and the Respondent. THE LAW[17]Section 40 of the Act provides that a rent repayment order is an order requiring the landlord under a tenancy of housing in England to repay an amount of rent which has been paid by a tenant. It confers power on the First-tier tribunal to make such an order in favour of a tenant where the landlord has committed an offence to which Chapter 4 of the Act applies.[18]The relevant offences are detailed in section 40(3) of the Act as follows: Act section general description of offence 1 Criminal Law Act 1977 section 6(1) violence for securing entry 2 Protection from Eviction Act 1977 section 1(2), (3) or (3A) eviction or harassment of occupiers 3 Housing Act 2004 section 30(1) failure to comply with improvement notice 4 section 32(1) failure to comply with prohibition order etc 5 section 72(1) control or management of unlicensed HMO 6 section 95(1) control or management of unlicensed house 7 This Act section 21 breach of banning order[19]Section 41 of the Act details the application process and provides: 41 Application for rent repayment order(1) A tenant … may apply to the First-tier Tribunal for a rent repayment order against a person who has committed an offence to which this Chapter applies.(2) A tenant may apply for a rent repayment order only if — (a) the offence relates to housing that, at the time of the offence, was let to the tenant, and (b) the offence was committed in the period of 12 months ending with the day on which the application is made. …[20]Sections 43 and 44 of the Act detail the power of the tribunal to make an order and the amount of that order and, in respect of an application by a tenant, provide: 43 Making of rent repayment order(1) The First-tier Tribunal may make a rent repayment order if satisfied, beyond reasonable doubt, that a landlord has committed an offence to which this Chapter applies (whether or not the landlord has been convicted).(2) A rent repayment order under this section may be made only on an application under section 41.(3) The amount of a rent repayment order under this section is to be determined in accordance with— (a) section 44 (where the application is made by a tenant); … 44 Amount of order: tenants (1) Where the First-tier Tribunal decides to make a rent repayment order under section 43 in favour of a tenant, the amount is to be determined in accordance with this section. If the order is made on the ground that the landlord has committed the amount must relate to rent paid by the tenant in respect of an offence mentioned in row 1 or 2 of the table in section 40(3) the period of 12 months ending with the date of the offence an offence mentioned in row 3, 4, 5, 6 or 7 of the table in section 40(3) a period, not exceeding 12 months, during which the landlord was committing the offence (2) The amount must relate to rent paid during the period mentioned in the table. (3) The amount that the landlord may be required to repay in respect of a period must not exceed— (a) the rent paid in respect of that period, less (b) any relevant award of universal credit paid (to any person) in respect of rent under the tenancy during that period.(4) In determining the amount the tribunal must, in particular, take into account— (a) the conduct of the landlord and the tenant, (b) the financial circumstances of the landlord, and (c) whether the landlord has at any time been convicted of an offence to which this Chapter applies. PRELIMINARY ISSUE[21]Prior to the commencement of the hearing the Tribunal considered that there was a preliminary issue to determine which it proceeded to discuss with the parties.[22]The Tribunal explained that there are three different types of licence, the absence of which can give rise to an application for a rent repayment order by a tenant or a previous tenant of a property. These are: a) A Mandatory HMO Licence; or b) An Additional HMO Licence; or c) A Selective Licence.[23]In this case the property was not in an area subject to Selective Licensing by the local authority at the time of the alleged offence.[24]In his Application the Applicant submits that his application is in respect of the Control or Management of an unlicensed HMO. In order for a property to require Mandatory licensing as an HMO it must be occupied by five or more unrelated persons using shared facilities.[25]With regard to the requirement for Additional Licensing, this would require the property to be occupied by three unrelated persons using shared facilities.[26]In the evidence provided by the Applicant he submits that the tenants at the property were: a) Kartheek Chepuri who occupied from 20th December 2022–March 2023 (4 months) (The actual date the tenancy finished was not known). b) Fatma Karacaoglu who occupied from 1st October 2021-3rd December 2022 (14 months) c) Krzysztof who occupied from 1st August 2020-1st February 2021 (7 months).[27]Therefore, the time when the above tenants were in occupation during the period for which the rent repayment order was sought was: a) Kartheek Chepuri – 4 months. b) Fatma Karacaoglu – 2 months 22 days. c) Krzysztof – Nil time.[28]From the Applicant’s submissions it appeared to the Tribunal that including the Applicant, there were a maximum of only two persons living in the property at any one time. It was not disputed that there were several persons residing in the property over the period of the Applicant’s tenancy but as there were no more than two at any one time, the necessity of having either an Additional Licence or a Mandatory Licence was not triggered.[29]The Tribunal asked the Applicant if he was able to provide any further evidence to substantiate his submission that the property required to be licensed but he was unable to provide any relevant evidence. DECISION[30]Having considered the matter based on the submissions made by the parties, the Tribunal determined that as there was no evidence that the property was occupied by more than two persons at any one time, there was therefore no requirement for the house to be subject to HMO licensing and no relevant offence committed. Accordingly, the case for a rent repayment order was not made and the Application should be dismissed. APPEAL[31]If either party is dissatisfied with this decision, they may apply to this Tribunal for permission to appeal to the Upper tribunal (Lands Chamber). Any such application must be received within 28 days after these written reasons have been sent to the parties (Rule 52 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013). G S Freckelton FRICS (chairman) First-tier Tribunal (Property Chamber)