5 Kepler House, Armitage Road, London SE10 0HF LON/00AL/HMK/2019/0029

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case No LON/00AL/HMK/2019/0029

Between

Mr Daniel LaskiApplicant

Mr Ali Kali and Mr Erkut KoksalRespondent

Before

Judge Robert Latham

Mr Michael Mathews FRICS

Mr Michal Salamaga for the Applicant

instructed by Stirling Ackroyd Application for a Rent Repayment Order by Tenant – Sections 40, 41, for the Respondent

Date 13 September 2019

Property: London SE10 0HF

Type of application: 43 & 44 of the Housing and Planning Act 2016

DECISION

Decision of the Tribunal The Tribunal dismisses this application for a rent repayment order. The Application

[1]The Tribunal is required to determine an application under section 41 of the Housing and Planning Act 2016 (“the Act”) for a Rent Repayment Oder (“RRO”) in respect of 5 Kepler House, Armitage Road, London SE10 0HF (“the flat”). Mr Laski seeks a RRO in the sum of £27,300. The application is signed by Mr Michal Salamaga, who is named as the applicant’s representative.

[2]This is a four bedroom flat on the second floor of a purpose built block of flats. Mr Laski was the tenant of the flat from 1 November 2017 to 31 December 2018. The application wrongly describes it as a “4 bedroom flat in converted house with 6 flats”.

[3]Mr Laski has occupied the flat pursuant to two assured shorthold tenancies. The first agreement, dated 1 November 2017, was joint tenancy with Mr Mateusz, for a term of six months at a monthly rent of £1,950. The second agreement, dated 1 August 2018, was a joint tenancy with Mr Kacpec Kasprowick for a term of five months at the same rent. All the tenants are Polish. The tenancy agreement specified that it is to be used as a single private dwelling. Paying guests are not permitted.

[4]On 12 February 2019, the Tribunal gave Directions. The purpose of such Directions is to identify the relevant issues that the Tribunal will need to consider so that the Tribunal can determine the application fairly and in a proportionate manner. They highlight the issues that the tribunal will need to consider in this complex area of the law. They are intended to assist litigants in person.

[5]Pursuant to these Directions, the respondents have filed a detailed statement of case. Each of them has made a witness statement. They state that they were unaware that this was a House in Multiple Occupation that required to be licenced. Indeed, they were unaware that that three or more people were occupying the flat. They only learnt of this when Greenwich inspected the flat in October 2018. On 18 November, they applied to Greenwich for a temporary exemption licence which has now been granted. They have now let the flat to a single family.

[6]The applicant was directed to file his bundle by 26 July. This was to include:(i) Full details of the alleged offence, with supporting documents from the local housing authority, if available. The tribunal highlighted that it will need to be satisfied beyond reasonable doubt that an offence has been committed;

(ii) A copy of the tenancy agreement;

(iii) Evidence of rent payments in the applicable period;

(iv) An expanded statement of reasons for the application, with a response to the respondent’s case;

(v) The name(s) of any witnesses who will give evidence at any hearing, with a signed and dated statement/ summary of their evidence, stating that it is true;

(vi) Any other documents to be relied upon at the hearing

[7]On 29 August, the applicant filed copies of the two tenancy agreements and details of rent payments. No particulars have been filed relating the(i) the alleged offence;

(ii) Greenwich’s additional licencing scheme;

(iii) any response to the respondent’s statement of case; or

(iv) evidence that the flat was being occupied by three or more persons.

[8]On 15 July, the tribunal notified that the case was listed for today. At 08.22 this morning, the tribunal received an e-mail from Mr Salamaga and Mr Laski in these terms: “I’m so sorry but we’re not able to attend todays hearing because of Daniel’s urgent family matter. His very close family member passed this night and he had to travel to his home country morning. We apologise for the inconvenience and late notice, it’s an emergency.”

[9]Mr Sam Phillips, Counsel, appeared on behalf of respondents. He provided a Skeleton Argument which set out why the respondent contends that the application is hopeless. He was accompanied by Mr Koksal. He invited the tribunal to proceed with the application. He noted that Mr Salamaga, the applicant’s representative, had not attended. The applicant had not applied for an adjournment. Neither had he indicated that he would be content for the tribunal to determine the case on the papers.

[10]The tribunal would have granted an adjournment had we considered that it was in the interests of justice to do so. However, we are satisfied that we should proceed as we agree that the application has no prospect of success. In particular, the applicant has failed to adduce any evidence:(i) of the Greenwich additional licencing scheme and

(ii) when, if at all, the flat was occupied by three or more people. Further, the landlord would seem to have a defence, namely a reasonable excuse for not licencing the flat as he was unaware that more than three people were occupying it (Section 72(5) of the Housing Act 2004). An applicant must prove beyond reasonable doubt that an offence has been committed by the landlord (Section 43(1) of the Housing and Planning Act 2016). The applicant has failed to do so. The tribunal therefore dismisses the application.

[11]Mr Phillips applied for an award of costs This is normally a “no costs” jurisdiction. An award can only be made in exceptional circumstances on the grounds of the unreasonable conduct (Rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rule 2013). The applicant asserts that he was advised to make the application by Greenwich. It is open to the respondent to make an application within 14 days of this decision for costs. If it does so, the tribunal will issue directions for a paper determination of the application. The parties are referred to the Upper tribunal decision in Willow Court

[2016] UKUT 290 (LC)

. Judge Robert Latham 13 September 2019 RIGHTS OF APPEAL

[1]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.

[2]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.

[3]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.

[4]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.