70 Devonshire Close, E15 1UG: LON/00BH/HMK/2018/0017 LON/00BH/HMK/2018/0017
DECISION
[40]We are satisfied that the Respondent was the landlord in respect of the Applicants’ tenancy for the purposes of the making of a Rent Repayment Order against him. We have come to this conclusion for the following reasons:-(a) The Respondent allowed the tenancy agreement to be signed for him in the capacity of landlord(b) The Respondent clearly represented to the Applicants that he was the landlord of the Property.(c) The Respondent produced no evidence from the freehold owners of the Property to suggest that he was not the landlord.(d) Even if the Respondent had no legal interest in the Property and thus no right to create a tenancy, the Respondent has purported to grant a tenancy and is accordingly estopped from denying that he could not create a legal tenancy in favour of the Applicants . Licencing[41]We are satisfied beyond reasonable doubt that the Respondent was guilty of an offence of the control or management of an unlicensed house (section 95(1) Housing Act 2004) throughout the period of the Applicants’ tenancy. We are further satisfied that the Respondent did not have a reasonable excuse for failing to licence the Property.[42]There is no doubt that the Property required a licence and that it did not have one and there is no doubt, even on his own case, that the Respondent was managing the Property in that period. Harassment/eviction[43]We are not satisfied beyond reasonable doubt that the Respondent committed any offence of eviction or harassment under the Protection from Eviction Act 1977.[44]The texts that we have referred to between the parties do not suggest that there was harassment or eviction as to create an offence under the Protection from Eviction Act; they suggest that the Applicants knew their rights and were prepared to assert these in the negotiations regarding the giving up of the tenancy.[45]We note that we were told by Mr Furlotte that the telephone conversations between the parties were of a different order but we were not given firm or further details of what was said other than; “you are not happy here” and the suggestion that the Applicants may not be safe in the local area. We do not consider that these alone amount to harassment or that they were acts likely to interfere with the peace or comfort of the Applicants with the intention to cause the Applicants to leave the Property. We consider the nature of the discussions between the parties as being part of the normal negotiation process regarding the vacation of the property. The amount of the order[46]In arriving at the sum of £3,600 we have taken into account the following matters.[47]According to the evidence provided from the local authority, there were safety/disrepair issues at the Property. One of the reasons for the licensing scheme is to ensure that such issues do not arise or that they are spotted straight away. So, for example, the application form for a licence requests information about the size of the Property so that the number of occupants can be regulated; it asks for confirmation of the existence and number of smoke alarms. We consider therefore that there is a connection with the safety/disrepair concerns and the lack of a licence in respect of this Property.[48]We do not accept the Respondent’s allegations regarding the alleged damage done to the Property by the Applicants’ dogs. We are satisfied that the Applicants did seek permission for the dogs especially as they were re-locating the dogs from Canada. We did not find the Respondent to be a credible witness in certain respects of his evidence. First, he produced no evidence form the owners of the Property that he was not entitled to let the Property out; second, we found that he was not credible on the issue of the rent being inclusive of all the utility bills; third, the Applicants demonstrated that his assertion that Ms McGraw wanted to move as she had a job in Barnet was simply not correct; fourth, there was evidence that both the Respondent and his agent Mehmet considered that the Property had been left in a good condition when agreeing to return their deposit in full (we do not accept the Respondent’s assertion that the alleged damage was not evident on the inspections - at least some of the damage would have been evident).[49]We accept the Applicants’ evidence that the rent for the Property was £1200 which included £100 Council Tax and that they were paying £50 on top of this per month in cash for utilities. The tenancy agreement clearly records that the rent was £1200 per month and we do not accept, in the light of this and the Applicants’ evidence, the Respondent’s assertion that this was a mistake and that the rent should have been £1250 per month including £250 bills.[50]We have therefore taken the net rent to be £1,100 per month.[51]We do not consider that the relevant starting point is to assume a Rent Repayment Order of 100% of the net rent. The Act provides that the tribunal must make an order of the maximum amount if the landlord has been convicted of an offence relating to eviction or harassment or breach of a banning order. This would indicate that a lesser amount should be at least considered where there is no such conviction. We have to take an overall view.[52]The failure to licence the Property is a serious matter and one which had real consequences as outlined above.[53]It is clear that the Respondent, even if not a professional landlord, has considerable dealings in the rented property market. In his evidence (as recorded above) he told us that he had other licensed properties in another borough.[54]We have balanced this against the fact that we have not found the allegations regarding harassment to have been proved to the criminal standard of proof.[55]We have taken the net rent at £1,100 per month which produces a total of £6,600 for the period of the Applicants’ occupation. We have then applied a rate of 50% deduction in respect of the amount of the Rent Repayment Order resulting in an award of £3,300.[56]There is no reason why we should not make an order that the Respondent pay to the Applicants the sum of £300, that being the amount that they have paid in tribunal fees in pursuing their application. Mark Martyński, Deputy Regional Tribunal Judge 5 October 2018 ANNEX - 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.