(x2) 14 Forest Drive East, London E11 1JY LON/00BH/HMF/2023/0125
DECISION
[1]The tribunal finds the applicants have proved beyond reasonable doubt the applicant has committed the offence of controlling or managing a house in multiple occupation (HMO) that was required to be licensed either as a mandatory HMO and also in compliance with the London Borough of Waltham Forest’s Selective Licensing Scheme, throughout the period for which the rent repayment orders (RROs) are claimed.[2]The tribunal makes the following rent repayment orders:(i) The respondent is to pay to the first applicant Ms Chistine Newman the sum of £1,789.74.(ii) The respondent is to pay the second applicant Ms Bonie Price the sum of £6,720.00.(iii) The respondent is to reimburse the tribunal fees of £400 paid in total by both applicants.(iv) All sums in (i) to (iii) above are to be paid within 14 days of this decision having been sent to the parties. _________________________________________________ The application[3]This is an application received by the tribunal on 19 May 2023, for a rent repayment order pursuant to section 41 of the Housing and Planning Act 2016 alleging the respondent has committed an offence under section 95(1) and/or section 72(1) of the Housing Act 2004. The first applicant seeks a RRO in the sum of £3000 for the period February 2022 to May 2022. The second applicant seeks a RRO in the sum of £7,800 for the period May 2021 to July 2022. Background[4]The first applicant occupied one room with shared use of the kitchen and bathroom/w.c. under a written agreement dated 25 January 2022 for a term of 12 months commencing 1 February 2022 at a rent of £750 per month inclusive of bills. The second applicant occupied one room at the subject premises under a written agreement dated 30 September 2019 for a minimum term of 2 months with effect from 18 October 2019 a rent of £650 per month inclusive of bills.[5]The subject premises at 14 Forest Drive East, London E11 1JY (‘the premises’) comprise a terraced house divided into 7 bedrooms with shared use of kitchen and bathroom/toilet facilities. The respondent landlord also owns No 12 Forest Drive East and occupied this as his home. The applicants provided a table of the occupants of the seven bedrooms at the subject premises with dates of occupation which was accepted by the respondent. Litigation History[6]Directions were given by the tribunal dated 27 June 2023 and an oral face to face hearing was held on 9 October 2023. The Law[7]Where the application has been made by the tenant the amount of a rent repayment order is determined in accordance with section 44 of the 2016 Act which states: (3)The amount that the landlord may be required to repay in respect of a period must not exceed— (a)the rent paid in respect of that period, less (b)any relevant award of universal credit paid (to any person) in respect of rent under the tenancy during that period. (4)In determining the amount the tribunal must, in particular, take into account— (a)the conduct of the landlord and the tenant, (b)the financial circumstances of the landlord, and (c)whether the landlord has at any time been convicted of an offence to which this Chapter applies. Parties’ contentions Preliminary matters[8]At the hearing the applicant sought to rely on a further bundle of documents provided on 22 September 2023 although no formal application had been made in respect of this and no direction had been made for either party to rely on any further documents although both took it upon themselves to keep referring further evidence to the tribunal without regard to the Directions given by the tribunal. The respondent objected to the applicants’ further evidence being admitted and stated it had gone to his ‘junk email’ and he had not seen it until a day or so before the hearing.[9]The tribunal refused to admit the applicants’ further evidence submitted by email on 22 September 2023 as permission to rely on this further evidence had not been sought; the evidence was late in being sent; it disadvantaged the respondent who was not provided with a proper opportunity to consider it and the tribunal did not consider it either necessary or proportionate to the issues in dispute. Similarly, the tribunal disregarded the further evidence relied upon by the respondent in answer to a letter from Mr Tait as no provision had been made for this in the Directions and the material was of little assistance or relevance (including an old school report of Ms Price).[10]The respondent had also sought to argue the application had been made’ ‘out of time’ and did not comply with the tribunal’s rules and requirements and should be struck out. This issue had been considered at an earlier stage and a determination made it was not out of time and the application had at all times been treated as having been validly made. However, for the avoidance of doubt the tribunal exercises it powers under rule 6 of The Tribunal Procedure (First-tier Tribunal) ( Property Chamber) Rules 2013 and extends the time for compliance by the applicants until such time a signed application form and the required supporting documents were provided to the tribunal.[11]At the hearing the applicants relied on a bundle of documents containing 167 (electronic) pages and a supplementary bundle of 56 (electronic) pages as well as the oral evidence of both applicants. As well as asserting the respondent had failed to license the subject premises, he had committed act of harassment by entering the communal areas of the premises without notice and had served invalid Notices to Quity on the applicants; had allowed ants and mice to infest the property; had kept the boiler room locked; failed to comply with fire safety measures and requirements.[12]The respondent relied upon an electronic hearing bundle and also gave evidence to the tribunal. Mr Cooper accepted the applicants were tenants and not lodgers. He also accepted the premises required a license but had been unlicensed until he applied for a Temporary Exemption Notice on 20 May 2022 and thereafter a licence on 1 May 2022, the exemption having been refused. The respondent also told the tribunal he had not been aware of the Additional Licensing Scheme or the need to apply for either a mandatory licence or a Selective Licence.[13]Mr Cooper denied he had harassed the applicants and maintained he had at all times been responsive to their enquiries and complaints; has served a Notice to Quit which he had believed to be required by the Local Authority before a HMO licence could be granted; had subsequently taken legal advice and served the correct Notices and required documents but had at no time forced the applicants to leave the premises but was willing to wait until the house could be lawfully emptied and then relet to a single household with a selective licence being granted on 28 July 2023.[14]Mr Cooper disputed that Ms Newman had occupied the premises as her only or main home as she continued to have mail sent to her parents ‘ address. However, Mr Cooper accepted Ms Price had lived at the property as her only address until she had moved out after having bought her own flat.REASONS
[15]The tribunal finds the applicants have proved beyond reasonable doubt the premises were a house which was controlled or managed by the respondent as a HMO and required a mandatory licence. Further, the tribunal finds the subject premises required a licence under the London Borough of Waltham Forest Selective Licensing Scheme introduced in May 2020 until 30 April 2025 for properties let to an individual, a single family or two unrelated sharers.[16]The tribunal finds the property was not so licensed and therefore an offence was committed until 20 May 2022 when a temporary exemption was applied for. The tribunal finds that this exemption was refused on 25 May 2022 and the applicant given 7 days to apply for the appropriate licence which the respondent did on 1 June 2022 and a selective licence was granted on 28 July 2023 the property have reverted to being let to a single household. Therefore, the tribunal finds that as from 20 May 2023 no offence was being committed under the LBWF licensing scheme.[17]The tribunal finds the respondent has failed to establish a reasonable excuse for not obtaining a licence. The tribunal does not accept the respondent’s ignorance of the licensing requirements as providing a defence to the alleged offence. The tribunal also finds both applicants occupied the premise as their only or main residence throughout the period for which the RRO is claimed.[18]In considering the amount of the RRO the tribunal takes as its starting point the full amount claimed by each applicant. The tribunal makes a deduction of £50 per month per applicant in respect of utilities (conceded by the applicants this was an appropriate sum) in the absence of utility bills other than an estimated bill for 2023 showing gas, electricity and broadband in the annual sum of around £5,500[19]The tribunal does not consider any deduction in respect of the applicant’s conduct and disregarded confidential information provided by the respondent in respect of Ms Price that was neither relevant to the period in question or to the issues the tribunal must decide. However, the tribunal finds the applicants’ allegations of harassment and disrepair are exaggerated and not supported by the multiple ‘WhatsApp’ message between the parties which strongly suggest an amicable relationship was maintained with the respondent. The tribunal does not accept the applicants’ explanation that these were sent only ‘for show’ as they were afraid of the respondent’s reaction if they did nothing or complained.[20]However, the tribunal finds the respondent is an experienced landlord of 20 years with a number of properties which he lets out and that he failed to comply with the fire and safety requirements for a HMO although had not been convicted of an offence in respect of the subject premises.[21]in his evidence, the respondent’s only defence to the alleged offence was one of not having known about the licensing requirements. The tribunal does not accept this as a valid defence.[22]The tribunal did not take the respondent’s financial circumstances into account as he expressly stated he was not relying on any financial factors to minimise the amount of any RRO.[23]Therefore, in all the circumstances the tribunal awards: Chistina Newman: £600 per month (£23.01 per day) x 3 months and 19 days (1/2/2022 to 19/5/2022) = £2,237.19. From this, a deduction of 20% is made to reflect the absence of a relevant conviction and therefore the tribunal awards a RRO in the sum of £1,789.75 Bonnie Price: £700 per month x 12 months = £8,400. From this, a deduction of 20% is made to reflect the absence of a relevant conviction and therefore the tribunal awards a RRO in the sum of £6,720. Reimbursement of tribunal fees[24]The tribunal makes an order the respondent is reimburse the applicants with £400 representing the tribunal fees paid.[25]All sums are to be paid by the respondent within 14 days of this decision being sent to the parties. Name: Judge Tagliavini Date: 17 October 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 should be made on Form RP PTA available at https://www.gov.uk/government/publications/form-rp-pta-application-for-permission-to-appeal-a-decision-to-the-upper-tribunal-lands-chamber 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).