47 Nuns Road, Winchester SO23 7EF HAV/24UP/HMB/2025/0600
DECISION
[1]The Tribunal concluded that Applicants have not made out their case to the requisite standard that the Respondents have committed an offence pursuant to the Protection from Eviction Act 1977 and as such their application for a Rent Repayment Order is dismissed. The Application:[2]The Respondents are the owners of 47 Nuns Road, Winchester SO23 7EF. The Applicants and their children have lived at this property pursuant to a lease since May 2019.[3]The application is dated 13th December 2024 and was received on 16th December 2024.[4]The Applicants apply to the Tribunal for a Rent Repayment order pursuant to the Housing and Planning Act 2016 Sc 40 on the grounds that the Respondents have committed offence(s) pursuant to the Protection from Eviction Act 1977. Directions:[5]Directions were given on the 20th of February 2025 which included as follows:- i) The hearing was listed for an in person hearing. ii) The Applicants to send to the Respondents a statement with a Statement of Truth by 13th March 2025. iii) The Respondents to send to the Applicants by 3rd April 2025 a statement with Statement of Truth. iv) The Applicants were provided with a right to reply to the Respondents statement no later than 17th April 2025. Compliance with directions[6]The Applicants failed to serve a witness statement by 13th March 2025 as directed. The witness statement was dated 17th April 2025.[7]The bundle was not sent to the Tribunal nor the Respondent until 24th April 2025.[8]The Applicants served a statement from Mr and Mrs Molloy (R2 parents) which the Respondents assert was in breach of directions as it was not a reply to their statement. A request was also made for them to attend to give evidence remotely. The Tribunal refused to permit Mr and Mrs Molloy to attend remotely and decided that, having read their statement, they would consider what weight to give to such evidence in their determinations taking into account the directions made and the lack of opportunity for cross examination by the Respondent’s counsel. The Law[9]The application is made pursuant to the Housing and Planning Act 2016.[10]Sc 40 provides that; “This Chapter confers power on the 1st tier Tribunal to make a rent repayment order where a landlord has committed an offence to which this chapter applies.” Sc 41 “a tenant or a local Housing Authority 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”. Sc 43 “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”.[11]The Act thus provides that a Rent Repayment Order may be made if the Tribunal is satisfied beyond reasonable doubt that a landlord has committed one or more offences as set out at Sc 40(3) of the 2016 Act.[12]In this case the Applicants rely on the Protection from Eviction Act 1977 and alleged offences of harassment committed by the Respondents towards themselves as tenants.[13]The offences in the 1977 Act are as follows; Sc 1(3) if any person with intent to cause the residential occupier of any premises -(a) to give up the occupation of the premises or any part thereof; or(b) to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof; does acts [likely] to interfere with the peace or comfort of the residential occupier or members of his household or persistently withdraws or withhold services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence. Sc1(3A) ….. the landlord of a residential occupier or an agent of the landlord shall be guilty of an offence if – (a) he does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or (b) he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence, and (in either case) he knows or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises. (3B) a person shall not be guilty of an offence under subsection 3A above if he proves he had reasonable grounds for doing the actual withdrawing or withholding the services in question.[14]The standard of proof required for an offence to have been proved to have been committed is “beyond reasonable doubt”, that is to the criminal standard of proof. The Hearing:[15]The Tribunal had read the entire bundle in advance of the hearing, a Skeleton argument on behalf of the Respondents from their counsel and a document headed “A statement by the Applicants for hearing on 28th April 2025 (2pm-3pm) was also read which was treated as a position statement/skeleton argument by the Tribunal.[16]The hearing started shortly after 2pm and concluded at 5.20pm.[17]Thereafter the Tribunal has since read the written submissions of both parties and takes no issue with timing of those submissions nor that an amended version was sent in by the Applicants very shortly after the first version.[18]The Tribunal does not intend to refer to every aspect of the evidence read and heard but has considered all the evidence fully.[19]The Tribunal first heard from the Applicant A2 who confirmed the contents of his statement as being true.[20]The Applicant (A2) confirmed the truth of his statement before the court and adopted the contents of the statement of A1”. This stood as his evidence in chief.[21]In cross examination A2 gave evidence as follows; i. That things had been alright living at the property for approximately 4 years, although there were some maintenance issues, but no complaints were made. ii. That the Applicants had not refused access to a company Norton Services in June 2023 and that he was alarmed that it was felt that he had not been cooperative. iii. That pre-November 2023 there were no complaints. iv. That the Applicant was willing to work constructively v. That at some point he expected as a tenant that they would have to move out. vi. That the old tenancy had expired in May 2023 vii. That in May/June 2023 it was expected that they would enter into a new tenancy agreement (once some works were completed) viii. That there was a pub meeting (in November 2023) between A1 and R1 in which he understood that R1 and R2 were divorcing ix. That the receipt of an e mail on 13th November 2023 (at page 127 of the bundle) was alarming due to the U turn by the landlords, namely that they may want the return of the property and were not prepared to enter into a renewal of the tenancy. x. That the e mail of 13th November was “shocking”. xi. He confirmed that he responded by e mail on 15th November 2023 (page 142/143 bundle) and confirming that this is a “sensitive subject”. xii. That he considered by the e mail of 13th November 2023 that there was a “steady crescendo of pressure”. He noted that the e mail referred to “agreeing a date some time in the New Year” to work for all (page 127) . xiii. That from November 2023 there was then a period of 6 months where nothing further was heard until May 2024. xiv. In May 2024 they have a “sudden request for 3 valuations” of the property by estate agents for a sale of the house. xv. The Applicant then referred to the period 9th October 2024 to 14th October 2024 as being “aggressive and oppressive”. The Applicant (1) referred to these events in his witness statement at page 31 bundle Paragraphs 27 – 32. xvi. The Applicant told the Tribunal that this entire pressure built up around Form 6A (Sc 21 notice) and it was an “entirely pressurised cooking pot.” And further described it as “intense sophisticated pressure”. xvii. On 24th October the Respondent (1) and her sister visit Nuns Road to look at an external drainpipe but that a Sc 21 notice is was put through the letter box. “I was concerned that moments later (after saying they could look at an external pipe) someone would do that”. xviii. “I was told she was unable to sell as we were there. I was embarrassed”. xix. It was described as a “very anti-social altercation” and intimidating as R1’s sister suggested that she (R1) had suffered abuse. The police were contacted by the Applicant (1), but no action was taken. xx. He described selling the property without an EPC as “gaslighting”, that repeated Sc 21 notices being served and the “pressure of a course of conduct” upon him and the effect on his family.[22]The Tribunal then heard from Respondent (2) who confirmed his statement which stood as his evidence in chief.[23]In cross examination he gave evidence as follows; i. that a tap that had been brought to court (with raised and sharp chrome) by the Applicants was from the property and that he had asked for dimensions in order to be able to replace it but wasn’t allowed access. Nor were Heat Hampshire. ii. On 4th April 2025 the Respondent gained access with the consent of the Applicants by way of a joint inspection with a representative from the Council. When he tried to arrange for Heat Hampshire to return to replace the tap they were refused access. iii. He accepted that a leaking tap is among some of the urgent works that needed doing. iv. He told the Tribunal when challenged that he had tried to agree to gain access, but this had been denied, and this had been the case since December 2024. v. The week before 4th April Alastair of Hampshire Maintenance had attended the property. It had been an external inspection, but he was invited in (by the Applicants) and he provided the Applicants with a list of what needed doing, including the tap but he wasn’t able to do this work as he isn’t a plumber. vi. The Respondent (2) accepted that the rear gate also needed repair and had for several months – he later agreed this had been the case for 2 years and also agreed that this was too long. vii. Other repairs required included a screw missing from the 2nd floor basin. viii. A repair to a step in the garden. ix. Some guttering repairs. x. A window needed to be replaced as the frame had distorted and that this was first raised in December 2024. xi. The Respondent (2) was asked whether he agreed that in November 2023 it was agreed that on payment of rent they (the Applicants) would have exclusive possession and an Assured Shorthold Tenancy. The respondent agreed with the issue about exclusive possession but not that they would necessarily be occupying under an Assured Shorthold Tenancy. xii. The Tribunal was told that back in May 2023 he had chased the Applicants several times to sign a fresh tenancy agreement and at that stage he was of the view that there was a statutory periodic tenancy. xiii. He denied there was any discount in the rent to reflect that this was a 2 year agreement. xiv. It was agreed that in October/November 2023 the Applicant (2) had not wanted the Respondent (2) to share the information about the Applicants being required to leave at some point. xv. The Respondent (2) replied that it was agreed that once there was a proposal for moving this would need to be shared with A1. xvi. It was put to the Respondent (2) that the e mails received in mid- October 2024 from the Applicants were “alarming” (pages 77 -87). The Respondent denied that any e mails had been alarming or were intended to be so. Findings of the Tribunal[24]An initial tenancy agreement was from 10th May 2019 until 9th May 2021.[25]Thereafter a new tenancy agreement was entered into running from 10th May 2021 until 9th May 2023.[26]Thereafter the Applicants remained in the property paying monthly rent in an agreed sum. It is no part of this application for the Tribunal to determine the basis upon which the Applicants occupied the property, although the Applicants made this request towards the end of the hearing. This is not an application before this Tribunal.[27]The Tribunal were unable to find that the Respondents had committed any offence pursuant to the Protection from Eviction Act 1977.[28]In particular, whilst the Tribunal noted that some of the complaints about necessary repairs to the property were not dealt with promptly, they could not find that this amounted to harassment.[29]The Tribunal did not find that the events of 25th October 2024 when R1 and her sister visited the property and were then invited in, or the circumstances of this invitation did as a matter of law amount to harassment.[30]The Tribunal was not satisfied that the service of the Sc 21 notices by the Respondents amounted to harassment by them. The Tribunal was not satisfied to the standard required that the behaviour of the Respondents amounted to oppressive or aggressive behaviour.[31]The Tribunal heard evidence and was satisfied that the relationship between Respondent 1 and Respondent 2 had broken down and financial remedy proceedings were ongoing.[32]The Tribunal is cognisant of the fact that it is likely that valuations of Nuns Road would have been required within those financial remedy proceedings and that various aspects of the behaviour of R1 and R2 was in an effort to progress the financial resolution of those proceedings.[33]The Tribunal do not find that the attempts by the Respondents to secure agreement to the Applicants vacating the property amounted to the offence of harassment.[34]The Tribunal is therefore satisfied that this application fails, and that no offence has been committed by the Respondents or either of them “beyond reasonable doubt” which is the appropriate standard to be applied when making any such finding.[35]The Tribunal makes no finding either way about the County Court proceedings brought by the Applicants against the Respondents. Costs[36]The Tribunal heard from counsel for the Respondent at the commencement of this hearing and as contained within counsel’s skeleton argument that they were making an application for costs.[37]In light of its decision the Tribunal has therefore considered the issue of costs in accordance with the Tribunal Procedure (First Tier Tribunal) (Property Chambers Rules 2013) Regulation 13 (b) which provides as follows; 13(1) “the Tribunal may make an order in respect of costs only –(a) (b) if a person has acted unreasonably in bringing defending or conducting proceedings in – (ii) a residential property case”[38]The Tribunal is satisfied that a costs schedule in form N260 has been served on the Applicants by the Respondents in the total sum of £8,595.82.[39]Whilst the Tribunal is satisfied that they heard insufficient evidence to meet the standard of proof required, namely to the criminal standard, whether on individual events or as a cumulative total, they decline in the circumstances of this case to make an order for costs against the Applicants. Rights of Appeal[40]A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the case.[41]The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.[42]If the person wishing to appeal does not comply with the 28-day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.[43]The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking. Name: Miss T A Clark (Lawyer Chair) Ms C Barton (Surveyor) Ms T Wong (lay member) Dated: 13 May 2025