Judge H CarrNone for the ApplicantNone Application for a rent repayment order by tenant Sections 40, 41, 43, & 44 of the for the RespondentDate 16 September 2025Property: 70A Ballards Lane, London, N3 2BUType of application: Housing and Planning Act 2016 Judge H Carr
DECISION
Decisions of the tribunal(1) The tribunal determines to make a Rent Repayment Order in the sum of £6120.(2) The Rent Repayment Order must be paid within 28 days of the issue of this decision.(3) The tribunal determines that the respondent reimburse the applicant for her application and hearing fees, totalling £330.(4) The tribunal makes the determinations as set out under the various headings in this decision. The application[1]The Applicant tenant, Ms Lara-Sonita Turna seeks a determination pursuant to section 41 of the Housing and Planning Act 2016 (the Act) for a rent repayment order (RRO) in relation to 70A Ballards Lane, London N3 2BU, the property.[2]The Applicant alleges that the Respondent landlord has committed the offence of control or management of an unlicensed HMO under s.72(1) of the Housing Act 2004.[3]The Respondent is Ms Charlotte Faugnan who is the registered owner of the property and is listed as landlord on the agreement produced by the applicant.[4]The Applicant is seeking to recover the sum of £10,200 for the period 1st August 2023 - 31st July 2024.[5]The application was made and received on 2nd December 2024. Directions were issued in this matter on 20th February 2025. The hearing[6]The hearing was a hybrid hearing at the request of the Respondent.[7]The Respondent appeared at the hearing via video link. She represented herself.[8]The Applicant also attended online and represented herself. The background and chronology[9]The property is a three bedroom first floor flat above a ground floor shop. There is a further flat on the 2nd floor of the property.[10]The property was originally the home of the Respondent who moved out of the property on 10th February 2023.[11]The original tenancy agreement was between Doris Dimitrova and the Respondent. Ms Dimitrova was described in that agreement as the lead tenant. The Respondent was described as the homeowner.[12]A second tenant, Anna MacLean moved into the property at the same time as Ms Dimitrova. She signed an agreement with Ms Dimitrova.[13]Ms Turna moved into the property on 1st April 2023. She signed an agreement on identical terms to the original agreement, however Ms Dimitrova was named as the lead tenant in place of the Respondent as home owner.[14]Ms Dimitrova left the property in March 2024 and the Applicant took over as lead tenant, collecting the rent from the other occupiers and taking responsibility for replacing tenants.[15]The Applicant paid £850 pcm rent initially to Ms Dimitrova and, once she became lead tenant, directly to the Respondent. The issues[16]The issues that the tribunal must determine are;(i) Is the tribunal satisfied beyond reasonable doubt that the landlord has committed the alleged offence?(ii) Does the Respondent have a ‘reasonable excuse’ defence?(iii) What amount of RRO, if any, should the tribunal order? (a) What is the maximum amount that can be ordered under s.44(3) of the Act? (b) What account must be taken of (1) The conduct of the landlord (2) The financial circumstances of the landlord: (3) The conduct of the tenant?(iv) Should the tribunal refund the applicant’s application and hearing fees? The determination Is the tribunal satisfied beyond reasonable doubt that the respondent has committed the alleged offence? The Applicant’s evidence[17]The property is situated within an additional licensing area as designated by the London Borough of Barnet. The additional licensing was in force during the disputed period. The scheme requires all HMOs with 3 or more occupants living in two or more households to be licensed.[18]The additional licensing scheme was implemented borough wide.[19]The property met all the criteria to be licensed under the designation and does not qualify for any licensing exemptions.[20]The Applicant says that during the period of her claim the property was occupied by at least three persons living in two or more separate households and occupying the property as their main residence. Their occupation of the property constituted the only use of the accommodation.[21]The other people who occupied the property during the disputed period were(i) Doris Dimitrova ( until March 2024)(ii) Anna Maclean(iii) Siobhan Rusk(iv) Rachel (Lulu) Ladd from January 1st to October 31st 2024(v) Daniele Bonanno[22]The Applicant says that this meant that at different times during the disputed period the property was occupied by three tenants as follows:(i) April 2023 – May 2023 Tenants: Doris, Lara, Anna(ii) May 2023 – December 2023 Tenants: Doris, Lara, Siobhan(iii) December 2023 - March 2024 Tenants: Lara, Rachel/Lulu, Doris(iv) March 2024 - August 2024 Tenants: Lara, Rachel/Lulu, Daniele[23]The Applicant explained that the reason for the lead tenant arrangement was that the Respondent wanted to only deal with one person. The Applicant also says that the Respondent made it clear that she did not want to know about the third person in the property.[24]The Applicant was unrelated to any of the other occupiers and were not in a relationship with any of the other occupiers. The Respondent’s evidence[25]The Respondent agreed that the property was unlicensed during the period of the applicants’ occupation. The Respondent disputed that the property required licensing.[26]The Respondent says that the property did not require licencing as she let the property only to two occupiers and that the lead tenant illegally sublet to the third tenant.[27]She says that in a telephone conversation she said that the 3rd room could be used for visitors to do temporary stays /sublet to help make up the rent.[28]The Respondent produced a WhatsApp message as evidence. This said Its not permissible for me to have 3 unrelated tenants. I can have 2 unrelated. If you do something with the 3rd room that would be your own business so to speak.[29]She agreed that the reason she had the lead tenant arrangement was because she only wanted to deal with one person.[30]The Respondent did not explain to the tribunal what she meant by the Applicant illegally subletting the third room. The Applicant’s response[31]The Applicant says that the Respondent was fully aware that the flat housed three tenants. She produced WhatsApp messages from the former lead tenant (Doris) with the Respondent where she says it is clear that the Respondent knew there would be three individuals living in the property.[32]She also produced email correspondence between the Respondent and all three tenants demonstrating her knowledge of the occupation of the property.[33]She produced a WhatsApp message from Siobhan Rusk introducing herself to the Respondent and asking for a plumber to be organised. This is at page 8 of the Applicant’s bundle in response.[34]The Applicant says that the Respondent conducted an in-person inspection of the property and saw all three occupied bedrooms.[35]The Respondent says that she did not do an inspection but was just showing her toddler daughter the room she had as a baby. She also said that she assumed that the Applicant was in a relationship with Siobhan as she had referred to a double bed. She said that she had no objection to partners staying over at the property. The decision of the tribunal[36]The tribunal determines that the respondent has committed the alleged offence. The reasons for the decision of the tribunal[37]The tribunal relies on the evidence from the Applicant and the information she provided from the local authority. The property is in an area of additional licensing and that the Applicant was in residence for the period of claim alongside two other occupiers throughout.[38]The Applicant said that the property was her only residence and the only residence of each of the other occupiers of the property. This was not challenged by the Respondent and the tribunal believed the Applicant who was a credible and straightforward witness.[39]The argument of the Respondent that she only let to two people is not accepted by the tribunal. The tribunal finds as a fact that the Respondent knew that the property was either let or sublet to a third person and that this would trigger her responsibility to licence the property. The tribunal also finds as a fact that the Respondent created the circumstances where she could deny knowledge of the third tenant/sub-tenant. In reaching this conclusion the tribunal relies on the WhatsApp messages provided on page 17 of the Applicant’s bundle. One WhatsApp message from Charlotte to Doris before Doris took the property said Hey Doris Thanks for the message and your time this am. I have mentioned to Anna that I can let the property to you both as advertised at my 3 bed rate and you can then let 3rd room if you please at whatever rate. I am interested only in having a single point of contact so I am not chasing 3 individuals for rent etc. Hope that makes sense.[40]The Respondent also said in the same WhatsApp string If you guys want me to invite you to apply then give me the go ahead but that will be for full property. I can wait until youre ready with a 3rd Person or before.[41]The Applicant also provided WhatsApp message sent from the Respondent to her, for instance about the bin collections on 7th July 2023 demonstrating that she was fully aware of the presence of the Applicant in the property.[42]The same WhatsApp message also said that the Respondent had spoken to Doris about handyman and flat inspection, which the tribunal determines shows that the Respondent was the person who organised works, etc.[43]The tribunal also notes that in WhatsApp messages provided by the Respondent Doris refers to Lara, asking what she was like to live with, and also Doris describing her as a good tenant.[44]It is not credible that the Respondent would have made the Applicant lead tenant if she had been an illegal subtenant or illegal occupier.[45]The tribunal also notes that the Respondent visited the property with her daughter and does not believe the Respondent when she says she did not carry out an inspection of the property.[46]Although the Respondent did not argue that the arrangement was a rent-to-rent agreement, the tribunal considered whether the arrangement with the lead tenant was a de-facto a rent-to-rent arrangement. It concluded it was not. The Respondent received all of the rent paid for the property. The tribunal concluded that the lead tenant acted as the agent for the Respondent, collecting rents and organising replacement tenants. It understood the arrangement as either creating a tenancy for the 3rd person or a subtenancy. In either case, the requirement to licence was triggered.[47]It also considered the terms of the agreements. The first agreement is the agreement between the Lead tenant Ms Dimitrova and the Applicant. That agreement calls the Applicant a tenant provides for a tenancy for 6 months at a rent of £850 which is one third of the total rent to be paid to the Respondent.[48]The second agreement provided is for a 12 month let of the property made between the Respondent who is described as the homeowner and the Applicant as Lead Tenant. That agreement was for a monthly rent of £2,500. There is no clause in the agreement prohibiting subletting. There is a clause in the agreement about problems with the property. It provides ‘Where issues arise with the property LEAD TENANT must notify HOMEOWNER and provide pictures/video where possible. Solution/action may then be taken to resolve.[49]Nothing in either of these agreements suggests a rent-to-rent arrangement. Neither, despite the argument of the Respondent that subletting was illegal, make any provisions about subletting.[50]It therefore determines that the Respondent has committed the offence. Does the Respondent have a ‘reasonable excuse’ defence?[51]The Respondent did not argue that she had a reasonable excuse defence. She says that it was her first time letting a property and she did not know the legal requirements. The tribunal treated this as a reasonable excuse defence.[52]She says that she has now put right anything that was remiss in the property. Decision of the tribunal[53]The tribunal determines that the Respondent’s reasonable excuse defence fails. The reasons for the decision of the tribunal[54]The tribunal finds that there is no substance to the Respondent’s claim of reasonable excuse. It does not accept that she did not know that licensing was required for a property occupied by three unrelated people. The WhatsApp correspondence demonstrates her knowledge of the consequences of three people in occupation of the property. Should the tribunal make an award of a RRO? If so, for what amount? The exercise of the tribunal’s discretion[55]The Applicant asked the tribunal to exercise its discretion and make an RRO. The decision of the tribunal[56]The tribunal determines to exercise its discretion to make a rent repayment order. The reasons for the decision of the tribunal[57]The tribunal considered the evidence and determined that it was appropriate for it to exercise its discretion and make a rent repayment order because there had been a clear breach of the law. The maximum amount of the RRO which can be ordered[58]The claimant says that she paid rent of £850 per month first to the lead tenant to provide to the Respondent until March 2024 and then directly to the Respondent for the remaining period of her occupancy. She produced evidence of payment of rent.[59]The Respondent did not challenge the rent payments made by the Applicant. The decision of the tribunal[60]The tribunal found that the maximum RRO it could award is 12 x £850 = £10,200. The reasons for the decision of the tribunal[61]The tribunal considered that all of the rent paid was paid to the Respondent. For the period up to March 2024 it was paid to the lead tenant as agent for the Respondent who then paid it to the Respondent. During the period that the Applicant was lead tenant, it was then paid directly by the Applicant to the Respondent. Other arguments concerning the amount of the RRO to be awarded.[62]The Applicant paid for her share of utilities in addition to the rent. Therefore no deduction from RRO will be made for utilities.[63]The Applicant argues that her conduct has been good. She handled all the flat’s maintenance and left the property very clean. She says that she always cleaned up after herself and adhered strictly to the cleaning rota. Additionally, she says that she undertook various tasks including maintenance, simple repairs, and decorating. In short she would say that she took a lot of responsibility for the property.[64]The Applicant argues that the conduct of the Respondent was poor(i) The Respondent did not protect the deposit, which was not only unlawful, but led to problems with the Applicant finding a replacement tenant as the potential tenant’s bank insisted on seeing deposit protection and the Respondent was not prepared to provide this.(ii) The Respondent put herself down on the council tax despite not living in the property and not paying the council tax.(iii) The Respondent made a claim to the Applicant via WhatsApp on 19th November 2024 that the property was licenced, but that message was deleted almost immediately. The Applicant provided copies of the original message and the deletion at page 16 of her bundle.[65]The Applicant says that the condition of the property was poor(i) She says that there were plumbing issues which caused blockages.(ii) There was a lack of fire precautions in the property. There were no fire doors throughout the property There was a very poor layout of property, with the kitchen lacking a fire door or any sort of barrier. There was, a narrow hallway which required emergency lighting which was not provided. There were no fire protection measures beyond basic smoke detectors. The Applicant purchased a fire blanket and an extinguisher because she was so concerned about the property.(iii) There was no fire risk assessment at the property, and no awareness of the need for one.(iv) She says there were problems with the fridge and the freezer.[66]The Respondent argues that her conduct has been good. She says that she tried to put the deposit into a scheme, but was unable to do so. She explained that the reference to a licence came from her purchase documents which indicated that the property had been let as a four person HMO and was licensed at the time.[67]She said that she did not consider the replacement tenant that the Applicant found to be a suitable replacement. When the tribunal asked, she said that was because the proposed replacement tenant wanted the deposit to be paid directly into the deposit protection scheme.[68]The Respondent says that the conduct of the Applicant has been poor. She says that other tenants found the Applicant messy and untidy. She relies on evidence from the former lead tenant to support that allegation. Submissions[69]The Respondent asked the tribunal to take into account that it was her first time letting what had been her former family home. She only wanted two permanent people in the property. She thought that she had followed safety protocols and had everything in hand.[70]The Respondent said that the former lead tenant wanted nothing to do with the application for the RRO which she said was indicative of how it should be treated by the tribunal.[71]She said that her financial circumstances were very poor. She did earn around £48 k per annum as a self-employed laboratory assistant, but now she is on maternity leave she has no income. Her partner is a chef and they own no other property.[72]She accepts she made mistakes but has learnt from this, and says that a successful RRO would have serious financial consequences.[73]The Applicant argued that letting property is a responsibility that the Respondent took too lightly, and with too much regard for increasing the income from the property.[74]The Applicant says that the behaviour of the Respondent placed her at risk and cost her money. The decision of the tribunal[75]The tribunal determines to award a RRO at 60% of the maximum RRO.[76]This means that the RRO will total £6120. The reasons for the decision of the tribunal[77]There is extensive case law on how the tribunal should reach a decision on quantum of a rent repayment order. In reaching its decision in this case the tribunal has been guided by the very helpful review of the decisions in the Upper Tribunal decision Newell v Abbott and Okrojek [2024] UKUT 181 (LC).[78]Acheampong v Roman (2022) UKUT 239 (LC) established a four stage approach which the tribunal must adopt when assessing the amount of any order. The tribunal in this case has already taken the first two steps that the authorities require by ascertaining the whole of the rent for the relevant period and subtracting any element of that sum that represents payment for utilities that only benefitted the tenant. There is no deduction for utilities that needs to be made in this case.[79]Next the tribunal is required to consider the seriousness of the offence in comparison with the other housing offences for which a rent repayment order may be made. The failure to licence a property is one of the less serious offences of the seven offences for which a rent repayment order may be made.[80]However, although generally the failure to licence is a less serious offence, the Upper Tribunal recognises that even within the category of a less serious offence, there may be more serious examples.[81]In this case the tribunal determined that the case is a serious example of one of the less serious offences in which a rent repayment order may be made.[82]The reasons for this are as follows:(i) The tribunal determines that the Respondent deliberately avoided her legal responsibilities as a landlord. This was to her advantage and placed her tenants at risk. The tribunal notes that (a) She did not use a proper tenancy agreement which deprived the tenants of rights. (b) She failed to protect the deposit which was not only unlawful but resulted in the Applicant losing two weeks rent from that deposit. (c) On the evidence before the tribunal the tribunal determines that she was aware that three tenants in the property would trigger licensing obligations. (d) She received the benefit of renting to three tenants but avoided accepting responsibility for having three tenants sharing the property.(ii) The tribunal determines that there were some serious defects in the property particularly with fire doors. The kitchen layout was risky – without a door to the kitchen it posed a risk to the occupants, and there was no fire risk assessment in place(iii) The tribunal determines that the door to the flat was insecure and placed the tenants at risk.[83]The tribunal does note that the Respondent was not a portfolio landlord which provides some mitigation to her conduct. She did also provide statutory safety information and certification. Nonetheless the deliberate avoidance of legal responsibilities is something that the tribunal takes very seriously.[84]The tribunal has considered the financial circumstances of the Respondent. Although very little specific evidence was provided, it does appear that as she was self employed she has very low income during her maternity leave other than income from the property and the Respondent appears to have no assets other than the subject property.[85]It has determined to reduce the amount of the RRO from 70% to 60% because of the financial circumstances of the Respondent.[86]The tribunal decided not to reduce the amount payable because of the conduct of the Applicant. The evidence of poor Applicant conduct provided by the Respondent was very limited and some of it predates the Respondent’s decision to make the Applicant the lead tenant, suggesting that she had no real concerns about the Applicant. The tribunal also notes that the Respondent did not deduct anything from the deposit for plumbing issues or the state of the property.[87]At this stage the tribunal considers that a RRO of 60% of the maximum RRO is appropriate and does not consider that any further deductions or increases should be made.[88]In the light of the above determinations the tribunal also orders the Respondent to reimburse the applicants their application fee and hearing fee. Name: Judge H Carr Date: 16th September 2025 Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason for not complying with the 28 day time limit; the tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit. The application for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).