(x2) Flat 168, Wendling, Haverstock Road, London NW5 4QY LON/00AG/HMF/2022/0248

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case No LON/00AG/HMF/2022/0248

Between

(1) Patricia Fernandez Lopez (2) Andrea Rodriguez TorresApplicant

(1) Robin Jhagra (2) Rajeev MehtaRespondent

Before

Judge Tagliavini

Ms Jane Mann MCIEH

N/A for the Applicant

Date 5 May 2023

DECISION

Summary decisions of the tribunal (1) The tribunal make a rent repayment order in favour of Ms Lopez in the sum of £2,969.63 and the sum of £1,703.21 in favour of Ms Torres. These sums are to be paid by the first and second respondent to the applicants within 14 days of this decision being sent to the parties. ________________________________________________ The applications

[1]These are two applications for a rent repayments order (RRO) in respect of a property situate at 168 Wendling, Haverstock Road, London NW5 4QY (‘the Property’) pursuant to the provisions of the Housing and Planning Act 2016 (‘the 2016 Act’). It is alleged the respondents have committed the offence of having the control or management of an unlicensed House in Multiple Occupation (HMO), contrary to s.72(1) of the Housing Act 2004. (‘the 2004 Act’). Background

[2]The Property comprises a four-bedroom flat with balcony and bathroom, w.c. living room and kitchen in a purpose-built block of flats. A tenancy agreement dated 22 October 2021 made between(1) Robin Jhagra & Rajeev Mehta and

(2) Luciano Romanelli, Patricia Fernandez Lopez, Zakaria Amar L’Houcine Drif and Andrea Torres for a term of 12 months at a rent of £2500 pcm.

[3]Ms Lopez seeks a RRO for a period of 12 months (unspecified) in the sum of £7,560 representing 12 months’ rent @ £630 pcm having first moved into the Property in August 2020.

[4]Ms Torres seeks a RRO for the period 22 October 21 to 21 October 2022 in the sum of £7,680 representing 12 months’ rent at £640 pcm.

[5]The applicants allege the respondents required a mandatory HMO licence or in the alternative a licence under the London Borough of Camden’s Additional Licensing Scheme which had been introduced on 8 December 2015. The requirement for an additional licence was confirmed following a visit by LBC on 28 September 2022 to the Property. On 1 November 2022, the respondents made an application for a licence.

[6]The Additional HMO licensing scheme operated by the London Borough of Camden applies to HMOs not subject to mandatory licensing and includes smaller shared houses and flats. Landlords and owners must hold an additional licence in Camden if they let a property occupied by 3 or more persons forming more than 1 household. Ms Lopez’s case

[7]Ms Lopez provided a bundle of 54 pages to the tribunal. Ms Lopez also provided proof of rental payments. This bundle also contained evidence from London Borough of Camden stating an additional licensing scheme for HMOs was introduced on 8 December 2015, which was replaced by a further additional licensing scheme for a further 5 years on 8 December 2020.

[8]Complaints of disrepair included the presence of limescale on the kitchen taps; no fire door in the kitchen; no fire extinguisher and no fire blanket. No other allegations were made by Ms Lopez. Ms Torres’ case

[9]In a bundle of 42 pages, Ms Torre stated in an expanded Statement of Reasons, Ms Torres claimed that throughout her occupation of the Property there were always four persons in occupation as evidenced by her tenancy agreement signed by both respondents as landlords. Ms Torres also provided copies of her bank statements as proof of rental payments.

[10]In oral evidence to the tribunal, Ms Torres stated she had received Universal Credit for the period 03/01/2022 to 03/09/2022 in a total of £4,811.85 of which £3,814.97 was paid in respect of housing costs.

[11]Ms Torres stated she felt unfairly pressurised to leave the Property although she had been informed by LBC she did not have to move. Ms Torres also told the tribunal that there was no gas certificate; no EPC and inadequate fire safety measures but otherwise the flat was found to be in good condition by LBC on their inspection.

[12]Ms Torres also complained her room had been advertised by Luciano (co-tenant) as available for occupation while she had been away in Spain and that Mr Jhagra had taken a deposit from another 9prospective0 tenant for her room while she was still a tenant. In questioning by Mr Hart, it was accepted by Ms Lopez that from 30/09/2022 there were less than 3 persons in occupation. The respondents’ case

[13]The respondents provided the tribunal with a bundle of 124 pages. In their submissions the respondents accepted a HMO licence was required during the period August 2021 and August 2022.

[14]The respondents relied upon a defence of ‘reasonable excuse’ citing of having been unaware of the requirement to licence the Property and their belief it was not an HMO as it did not have five occupants and that as they lived outside the London Borough of Camden (LBC) were unaware of its licensing requirements and did not learn of them until summer 2022. Further, the respondents were led to believe by LBC the block was likely to be demolished due to redevelopment works and that notification of this was imminent. The respondents also stated that all necessary certificates had been provided to the tenants and their at least one had been removed from the notice board by a tenant. Mr Jhagra said he had made enquiries about licensing with L B Camden in 2016 or 2017 but was referred to their website for information.

[15]In respect of the issue of quantum, the respondents told the tribunal the Property is a high quality let and is maintained to the highest standards. They had no previous relevant convictions and are currently in financial difficulties due to the impact of Covid-19.

[16]The first respondent also relied upon his poor mental health brought on by bullying and discrimination at his workplace. It was also asserted that he was in considerable debt totalling approximately £47,900 (excluding any mortgages) although he did not provide any documentary evidence of this.

[17]The respondents also asserted Ms Torres had become aggressive in her dealings with them from around June 2022 and having first agreed voluntarily to vacate the property, changed her mind and her motives in making this application were due to her ill-will towards them.

[18]Mr Jhagra and Mr Mehta both asserted that each owned another property that was also let to tenants. Mr Mehta stated he owned a property in Coventry for which a HMO licence had been granted on 6 April 2021 and he completed Landlord Accreditation Training in September 2022. Mr Mehta stated he had been put under a great deal of stress and had suffered ill-health due to personal and professional circumstance.

[19]The respondents also relied upon an email/ statement from Luciano Romanelli dated 12 November 2022 in which it was stated that Ms Torres’ claims of harassment and threats are false and that the tenants had mutually agreed a date on which to vacate the property, although Ms Lopez left at an earlier date. A short statement signed ‘ Zakaria’ also confirmed a positive experience as a tenant of the Property. Further testimonial statements were provided from tenants of the respondents’ other properties. The tribunal’s decision and reasons

[20]The tribunal finds the Property did not require a mandatory HMO licence as it was not occupied by five or more occupiers in 2 or more households. The tribunal finds however, the Property did require an additional licence under the scheme operated by LBC. However, the tribunal finds that as of 1 October 2022 the respondents were no longer committing an offence as the number of occupiers had reduced to less than three as of that date.

[21]In light of the respondent’s concession and on the applicants’ evidence, the tribunal finds beyond all reasonable doubt, the respondents have committed the offence of having the control or management of an unlicensed HMO.

[22]The tribunal does not accept the respondents have made out a defence of ‘reasonable excuse.’ The tribunal finds that in 2019, Mr Mehta was aware of local licensing requirements in Coventry and therefore, should reasonably have informed himself as to whether, other local authorities had licensing schemes in place. Further, the tribunal finds the respondents are professional landlords even if their small property portfolio is not the only source of their income. Therefore, the tribunal expects the respondents to have kept themselves up to date with national and local legislation and regulations and should reasonably have known about LBC’s licensing requirements.

[23]In considering the matter of quantum the tribunal follows the approach set out in Acheampong v Roman & Ors

[2022] UKUT 239 (LC)

[24]Ms Lopez seeks a RRO for a period of 12 months (unspecified) in the sum of £7,560 representing 12 months’ rent @ £630 pcm. However, the tribunal finds the maximum period for which Ms Lopez can claim is 22 October 2021 to 1 August 2022 being the date she vacated the Property. Therefore the maximum RRO the tribunal can make is £5,939.26.

[25]Ms Torres seeks are RRO for the 12 months period of 22 October 2021 to 21 October 2022 when she vacated the property in the sum of £7,680. However, the tribunal finds the maximum period for which a RRO can be claimed is 22 October 2021 to 30 September 2022 as less than 3 persons occupied the Property after that date and reduces the maximum to £7,271.45. From this sum the tribunal must deduct payments of Universal Credit (housing element) of £3,865.00. Consequently, the maximum RRO the tribunal can make is £3,406.42.

[26]The tribunal accepts the applicants were responsible for paying all utilities in addition to their rent and therefore makes no deductions in respect of these matters.

[27]In the absence of any documentary evidence as to the respondents’ financial liabilities, the tribunal determines it is not appropriate to make any deductions in respect of these from the amount of any RRO.

[28]In considering the conduct of the applicants and the tenants, the tribunal finds the respondents were generally responsive and responsible landlords, who took care to maintain the property to the high standard the applicants enjoyed. However, the Tribunal noted that fire precautions works were required to meet licensing standards. The tribunal does not accept Ms Torres assertions the respondents harassed her and finds they in fact, did their best to accommodate both applicants expressed wish to move out of the property on the dates they themselves specified.

[29]Although the respondents believe that Ms Torres has ‘engineered’ the position they now find themselves in, the tribunal does not accept this argument as it is only due to their failure to acquire an HMO licence, that this application has been made.

[30]The tribunal accepts neither respondent has any previous conviction for a relevant offence.

[31]The tribunal considers the offence proved is not of the most serious kind. The tribunal finds the respondent’s failure to licence the Property was not accompanied by threats of eviction or harassment. Further, the tribunal finds any disrepair was in fact minimal. The tribunal finds that some fire safety works were required and the respondents arranged to have these carried out albeit with some, but not substantial disruption to the tenants. Therefore, the tribunal considers it is appropriate, in all the circumstances to reduce the maximum amounts of the rent repayment orders by 50%.

[32]In conclusion, the tribunal makes a rent repayment in favour of Ms Lopez in the sum of £2,969.63 and a rent repayment order in favour of Ms Torres in the sum of £1,703.21. Both sums are payable by the first and second respondent within 14 days of this decision being sent to the parties. Name: Judge Tagliavini Date: 5 May 2023 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).