26 Atherton Road, Forest Green, London E7 9AJ: LON/00BB/HMK/2018/0018 LON/00BB/HMK/2018/0018

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case No LON/00BB/HMK/2018/0018

Between

Mr Michael WilliamsApplicant

Let Sell Property Limited MrM Younis, director of Let SellRespondent

Before

Judge Dutton 25th July 2018

In person for the Applicant

Limited with Mr Y Mohamed, husband of freeholder Application for a Rent Repayment Order - Section 73 of the Housing Act for the Respondent

Venue 10 Alfred Place, London WC1E 7LR

Date 25 July 2018

Property: London E7 9AJ

Type of application: 2004 licence for house in multiple occupation Tribunal Judge Dutton

[1]The Tribunal received an application for a RRO from the Applicant Mr Michael Williams on 13th April 2018. The application indicated that the Respondent, Let Sell Property Limited, who was the landlord on a tenancy agreement produced to us, had been convicted of an offence under section 72(1) and (6) of the Housing Act 2004 (the Act). A memorandum of conviction from the Thames Court Magistrates was produced showing a conviction on 7th December 2017 with the period for which the offence had been committed shown as 8th March 2016 to 12th August 2017. A fine of £10,000 had been imposed with costs. The memorandum records that the Respondent was represented and had pleaded guilty.

[2]In addition to this offence it was noted that the Respondent had also been convicted of an offence under section 234 of the Act and was fined a further sum of £5,000.

[3]The matter came before us for hearing on 25th July 2018. Prior to the hearing we had received bundles from both parties. The Applicant’s bundle included the application, the certificate of conviction and proof of payment. In addition we had, what purported to be a copy of the Applicant’s letting agreement in respect of Room 2 Ground Floor flat at the 26 Atherton Road. This showed a commencement date of 1st September 2014 with an end date of 28th February 2015. The recorded rent is £560 per calendar month. It would seem that the Applicant has held over under this agreement and the rent has not been increased during the period of his occupancy, which continued at the date of the hearing.

[4]In addition to the initial bundle we were also provided with papers responding to the matters raised by the Respondent in its bundle. We noted all that was said.

[5]The Respondent had provided a bundle of papers which included witness statements from Mr Younis, a director of the Respondent company, Mr Yunus Mohamed, the husband of the freeholder, both of whom attended the hearing and a statement from Mrs Mohamed, the freeholder, who did not attend. Again we noted all that was said.

[6]At the hearing Mr Williams told us of the problems he had dealing with the Respondent and relating to the Property. This included the lack of access to the rear garden area, which was, we were told still used for storing building materials, although had been the subject of an attempted clean up. It was clear from his evidence that Mr Williams considered that he was not dealt with appropriately by the Respondent and had been the subject of attempts to ‘unlawfully’ evict him. He sought repayment of 12 months rent because he was not receiving ‘adequate service for what he was paying for’. His initial view was that he was entitled to 12 months repayment from 8th March 2016, being the date it is said the offence commenced.

[7]He confirmed that he was paying £560 per calendar month and that this rent had not been increased since he took occupation in 2014. He could not produce evidence that the offence had continued beyond the date recorded in the memorandum of conviction, namely 12th August 2017.

[8]For the Respondent Mr Younis told us that the managed the Property for Mrs Mohamed, the freeholder and that their agreement was that they received a fee of 7% of the letting income. For this fee they represented themselves as the landlord and dealt with all aspects, including Court matters. It did not seem, however, that they had assisted in respect of the licensing of the Property. On that point we had in the bundle copies of two licences. One was dated 30th May 2013 made under the provisions of s88 of the Act (selective licensing) and the other under s64 of the Act dated 17th May 2018 but appearing to be for a period running from 1st January 2013 to 21st December 2022. We suspect this is a typographical error and the start date should be 1st January 2018. This is consistent with that which Mr Younis told us, namely that an application for the correct licence had been made on 5th December 2017.

[9]Mr Younis accepted that the Property had no appropriate licence until the application was made on 5th December 2017 and that therefore the period for which an offence was being committed would appear to be from 8th March 2016 to 5th December 2018, relying on the provisions of s74(6)(a) and 72(4)(b) of the Act.

[10]We also heard from Mr Mohmed who provided some information, without supporting papers it must be said, of the costs he was required to defray in respect of services, cleaning and insurance for the Property, or more particularly the flat on the ground floor of which Mr Williams room forms part. FINDINGS

[11]In reaching our decision we have considered the provisions of sections 72, 73 and 74 of the Act. In particular section 73(8), 74(6) – (8), details of which are set out below.

[12]In this case there is no doubt that the Respondent was convicted of an offence under s72(1) of the Act. As a consequence it is subject to the possibility of a RRO being made. The Act states that the period for which an RRO can be made for an occupier is the period of 12 months from the date of the Application, which was received at the Tribunal on 13th April 2018. Accordingly the maximum period for which an order could be made is back to 14th April 2017. The memorandum of conviction records a period for the commission of the offence at the time is came before the Court from 8th March 2016 to 12th August 2017. However, we accepted the response by Mr Younis that in fact the commission of the offence ran until the application for a licence, which we again accepted was 5th December 2017.

[13]Accordingly applying the provisions of s74(8), which limits the period for which a RRO can apply to 12 months from the date of the Application, we find that the relevant period is 14th April 2017 to 5th December 2017, being 235 days.

[14]The rent paid is agreed at £560 per calendar month. This gives a daily rate of 18.41p and for the total period an amount of £4,326.35.

[15]Under the provisions of section 74(5) we must consider a number of issues to enable us to determine what we consider to be a reasonable amount required to be paid. These are set out in s74(6) and include the conduct of the parties and the Respondent’s financial circumstances. We are satisfied on the matters covered by s74(6) (a) – (c).

[16]As to conduct there was nothing before us to suggest that Mr Williams had behaved in a way which we should consider. There was a cross allegation of common assault involving Mr Williams and Mr Hotalwala, Mr Younis’ co director but we do not consider that relevant. In so far as the Respondent is concerned we noted the conviction relating to the condition of the rear garden and the allegations that attempts at unlawful eviction had been made. We were told that a notice under section 21 of the Housing Act 1988 had been served but we did not consider it necessary to go into that aspect. We have considered those matters but again they did not bear on our decision.

[17]What was of relevance was the fine imposed at the Magistrates Court, initially totalling £15,000, with costs but which we were told by Mr Younis had been reduced on appeal to a total fine of £5,000. In addition the financial position of the Respondent should be considered. We noted that although the turnover for the year ending 31st August 2017 was just under £277,000, the profit, after tax was only £12,914.

[18]We have noted that Mr Williams, despite his complaints, appears to enjoy living at the property. Taking these matters into account we have concluded that a reasonable sum to award in respect of the RRO, payable to Mr Williams should be £2,200, or approximately half the maximum amount. Such sum should be paid within 28 days. Tribunal Judge Dutton 25th July 2018 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). The Relevant Law S72 Offences in relation to licensing of HMOs(1) A person commits an offence if he is a person having control of or managing an HMO which is required to be licensed under this Part (see section 61(1)) but is not so licensed.

(2) A person commits an offence if- (a) he is a person having control of or managing an HMO which is licensed under this Part, (b) he knowingly permits another person to occupy the house, and (c) the other person's occupation results in the house being occupied by more households or persons than is authorised by the licence.

(3) A person commits an offence if- (a) he is a licence holder or a person on whom restrictions or obligations under a licence are imposed in accordance with section 67(5), and (b) he fails to comply with any condition of the licence.

(4) In proceedings against a person for an offence under subsection (1) it is a defence that, at the material time- (a) a notification had been duly given in respect of the house under section 62(1), or (b) an application for a licence had been duly made in respect of the house under section 63, and that notification or application was still effective (see subsection (8)).

(5) In proceedings against a person for an offence under subsection (1), (2) or (3) it is a def