1. Keith Goldsbrough 2. Robert Swart 3. Javan NixonApplicant1. CA Property Management Ltd 2. Akinyele Latunji 3. Rebekah Latunji (in relation to Mr Goldsbrough only) 4. Timothy Gardner 5. Aliki GardnerRespondent
Before
Deputy Regional Judge MartyńskiMs S Coughlin MCIEHMr C Piarroux JPDate 18 May 2021Hearing 2021-04-30Property: 24 Cowper Gardens, N14 4NR 1. Keith Goldsbrough
DECISION
[34]Mr Goldsbrough alleged that CAPM had committed an offence under s.1(3A) Protection from Eviction Act 1977 which reads; 3A) Subject to subsection (3B) below, 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.[35]We do not consider that any offence has been made out on the standard of beyond reasonable doubt.[36]There is no evidence that Mr Latunji or CAPM was responsible for Mr Goldsbrough’s clothes being thrown out of the Property.[37]As to the demand for access to Mr Goldsbrough’s room when he was unwell, whilst this may have been an act likely to interfere with peace and comfort, there is no evidence that Mr Latunji knew or had reasonable cause to know that this would cause Mr Goldsbrough to give up occupation (he was leaving shortly in any event).[38]So far as the leak is concerned, there is no evidence that this was a failure to repair so as to cause Mr Goldsbrough to leave. Mr Goldsbrough incorrectly referred to a leak from the roof which no doubt confused matters. It seems to us that the problem was more likely than not to be down to the fault of the tenants in the attic. There is clear evidence from the texts that Mr Latunji is, at least at first, willing to investigate the issue. Mr Latunji says that he went to investigate and could not find anything and this could well be correct if it were the fault of the tenants in the attic.[39]It was submitted, on Mr Goldsbrough’s behalf that the act of ‘sending rude and unhelpful’ messages by Mr Latunji was an offence under section 1.(3A). We do not consider that there is sufficient evidence that any of the messages, or a combination of them would amount to an offence.[40]Having made these findings, we do not need to go on to consider whether a Rent Repayment Order can be made against the Latunji’s by way of s.1(6) of the Protection from Eviction Act 1977.[41]We are satisfied, beyond all reasonable doubt, that the Property was occupied by five or more persons from at least 8 January 2018 until 31 December 2018. The Applicants all gave clear and credible evidence of occupancy during their tenancies and their evidence as to occupancy was not contested by any of the Respondents.[42]We have taken 8 January 2018 as the starting point given the uncertainty in Mr Goldsbrough’s evidence of the occupancy at the start. Whilst Mr Swart gave evidence that there were five or six people living there when he moved in early December, this, to some extent conflicts with Mr Goldsbrough’s evidence. However, on the totality of the evidence of Messrs Goldsbrough and Swort, we are satisfied beyond reasonable doubt that by 8 January 2018, there were five or more occupants.[43]Accordingly, on our findings, the Property was a House in Multiple Occupation and required a licence. There is no dispute that the Property was not licenced nor that it would have required one if occupied by five or more individuals.[44]Section 72(1) Housing Act 2004 provides that a person commits an offence if he is a person having control of or managing an HMO which is required to be licensed.[45]Section 263 of the 2004 Act defines a person having control as the person who receives the rack-rent of the premises, a rack-rent being not less than two-thirds of the full net annual value of the property.[46]Clearly, Mr & Mrs Gardner are in receipt of a rack-rent (as is CAPM). The Upper Tribunal in the case of Rakusen v Jepsen & Others [2020] UKUT 0298 (LC) confirmed the established position that more than one landlord could be in receipt of rack rent at the same time. It follows from this, that the Gardners, even as superior landlords, can commit an offence of having control of an unlicensed HMO.[47]We have found that the Property was a licenseable HMO during the majority of the period claimed for by the Applicants. There is no dispute that it was unlicenced. There is no dispute that the Gardners were in receipt of a rent. There is nothing in law to prevent more than one landlord being in receipt of a rack rent. The Gardners were therefore in receipt of a rack rent for the Property and have accordingly committed an offence pursuant to section 72(1) of the 2004 Act.[48]Under the Housing Act 2016, A Rent Repayment Order can be made against a landlord who has committed an offence under section 72(1) of the 2004 Act.[49]The next question therefore is whether a Rent Repayment Order can be made only against a tenant’s immediate landlord or whether such an order can be made against a superior landlord in this case, the Gardners.[50]The Upper Tribunal in this case and in the subsequent case of Rakusen v Jepsen & Others [2020] UKUT 0298 (LC) has made it clear that a Rent Repayment Order can be made against a superior landlord where that superior landlord has committed an offence under section 72(1) of the 2004 Act.[51]At the hearing, Mr & Mrs Gardner were told by the tribunal that;(a) There were statutory defences to the offence(b) That they were entitled to make representations to the tribunal as to the amount of any Rent Repayment Order made by the tribunal if we found that there were grounds to make such an order and that these representations could include details of their financial circumstances. Mr & Mrs Gardner declined to make any submissions or to give any evidence in respect of either of these matters.[52]In deciding the amount of the Rent Repayment Orders, we did not have any starting point that we worked from or to.[53]We do not consider that there was any relevant evidence as to the conduct of the Applicants, as tenants of the Property, or otherwise to affect the amount of the order.[54]We consider that Mr & Mrs Gardner did have some actual control over the Property and are rightly liable in respect of the failure to licence. It is clear from the terms of their contract with CAPM that they were aware of the manner in which the Property was to be used. They followed Mr Latunji’s approach in not putting forward any evidence on the question of occupation and simply alleging that the Applicants could not prove their case on this issue.[55]In the circumstances, we conclude that the order should be for the full amount of the rent by the Applicants for the duration of the time that the offence was being committed by the Gardners. The awards have been calculated as follows: Goldsbrough 11 months x £550 = £6050; less arrears of rent £131.42 = £5918.58 Swart 11 months x £550 = £6050; less 3 days (5,6 & 7 January 2018) £54.25 = £5995.75 Nixon 3 months and 10 days x £550 = £2344.00[56]The Applicants have been successful in their applications against Mr & Mrs Gardner and therefore are entitled to have their fees paid by the Gardeners. Deputy Regional Tribunal Judge Martyński Date: 14 May 2021 Corrected: 18 May 2021 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).