8a-8b Avery Row, W1K 4AL LON/00BK/HMB/2022/0010
DECISION
[1]The application for a Rent Repayment Order is dismissed. Procedural background[2]By an application dated 25 October 2022, the Applicant applied for a Rent Repayment Order for an (unspecified) period of 12 months on the grounds;(a) Illegal eviction – s.1 Protection from Eviction Act 1977(b) Harassment – s.1 Protection from Eviction Act 1977(c) Disrepair[3]The tribunal issued directions on the application on 1 December 2022 and these directions were later amended on 8 February, 3 April and 17 April 2023.[4]The directions included provisions that the Applicant should;(a) specify the 12-month period for which he was claiming a Rent Repayment Order;(b) provide evidence of the amount of rent paid;(c) file an expanded statement of reasons for the application. The Applicant failed to comply with the requirements set out at (a) & (b) but he did provide a witness statement which, in our view, did constitute expanded reasons for the application.[5]By email dated 4 June 2023, the Applicant applied to adjourn the hearing set for 7 June 2023. That application was considered and refused by Judge Martyński on 6 June 2023. Factual background[6]The property in question is described by the Applicant as being, 8a-8b Avery Row. It appears that the correct address is ‘Flat B, 2nd & 3rd Floor, 8 Avery Row’ (‘the Property’).[7]The Property is a two-bedroomed maisonette in a period building containing three flats.[8]The long leasehold interest in the Property is held by the Respondent, the Property is managed by Parklane Apartments.[9]According to the Applicant, he, his partner, and two children, rented the Property via Airbnb from 18 February 2021 until they entered into a formal tenancy.[10]The parties (those being, the Applicant, the Respondent and the Applicant’s partner, Dr Elena Kagiafa) entered into an Assured Shorthold tenancy for the Property (described as ‘Flat B, 2nd & 3rd floor, 8 Avery Row’) for the period 1 April 2021 to 31 March 2022 at a rent of £500 per week, payable monthly in advance in the sum of £2,166.66.[11]The same parties entered into another written tenancy agreement for the period 1 April 2022 to 31 March 2023 at a rent of £700 per week, payable monthly in advance in the sum of £3,033.33. (According to the Respondent, the rent for June 2022 was reduced by £733.33 to compensate the Applicant and his wife for the inconvenience of some window replacement works that were carried out).[12]According to the Respondent, the Applicant stopped paying rent from 1 July 2022 and has not paid any rent since that date.[13]In or about September 2022, the Applicant made an application to this tribunal referring to it the rent payable under the second tenancy. This tribunal’s decision on that application was issued on 30 November 2022. The application was dismissed on the grounds that it was out of time.[14]The Respondent commenced possession proceedings against the Applicant and his wife in respect of the Property in the County Court in September 2022.[15]In November 2022 the Applicant issued two sets of proceedings in the County Court, one against Parklane Apartments and one against the Respondent. The Claim issued against the Respondent is a claim for damages in respect of alleged disrepair. The Applicant also issued proceedings in the High Court against a Director of Parklane alleging defamation.[16]The possession proceedings in respect of the Property were heard on 2 May 2023, in the Mayors and City County Court where DDJ Althaus made the following order; Defendants shall give the Claimant outright possession on Ground 8 in 14 days. Money judgement for £33,366.66 payable in 14 days. Use and occupation charges of £99.73 per day from 1.6.23 until vacant possession. Interest £279.86 Costs: £4,500 payable in 14 days The hearing[17]The Applicant failed to attend the hearing. We were referred to an email from the Applicant sent to the tribunal and to the Respondent in the early hours of 7 June. That email repeated the application for an adjournment of the hearing. The grounds for the application were given as; I regretfully express my inability to attend the aforementioned hearing due to the pressing nature of my current legal situation. I am currently facing various complexities that demand thorough attention and preparation to adequately present my case before the Tribunal. Recent Important Witness Evidence: Since the last hearing, crucial witness evidence has emerged from three different individuals, which directly impacts the outcome of the case. These witnesses have come forward with significant information that is essential to the resolution of the matter. Attached to the email was a witness statement running to 21 pages. That witness statement re-stated the Applicant’s case which had been set out in his witness statement filed earlier in the proceedings, and commented on the Respondent’s Statement of Case.[18]We refused the renewed application for the adjournment for the following reasons;(a) The fact that the Respondent was due to appear (by video) for a Case Management Hearing in the High Court (where he was the Claimant) on the afternoon of 8 June 2023, did not, in our view, prevent him from attending the hearing at the tribunal hearing centre on 7 June 2023. The Applicant had been given sufficient time, as set out in the directions given by the tribunal in this case, to prepare his case.(b) So far as the ‘recent important witness evidence’ is concerned; First, as stated above, the Applicant has had sufficient time to prepare his case. Second, although the Applicant had given some details as to this further evidence (dealt with below), those details fell short of explaining how that evidence was going to assist the Applicant in establishing his claim.[19]Following the refusal of the adjournment application, we went on to consider the merits of the application. The Applicant’s evidence[20]The Applicant’s evidence was set out in his application form, his witness statement dated 9 February 2023, various documents contained within the bundle that he filed with the tribunal and the witness statement, referred to above, filed on 7 June 2023.[21]Illegal eviction: Clearly, the Applicant has not been evicted from the Property. Section 1(2) Protection from Eviction Act 1977 provides as follows; If any person unlawfully deprives the residential occupier of any premises of his occupation of the premise or any part thereof, or attempt to so, he shall be guilty of an offence…..[22]At paragraph 26 of the witness statement dated 9 February 2023, the Applicant stated; I must also state that as soon as I raised the issue to the managing agents the very serious disrepair issues and my intentions to pursue them legally, they initiated an ILEGAL (sic) EVICTION procedure by issuing possession claims proceedings. At paragraph 44 of that statement, the Applicant stated; The whole possession claim action from the agents by serving section 8 and section 21 notices BEFORE the 2 months period and while we submitted applications to the first-tier tribunal for fair rent determination must be considered as an action of disrespect to the laws and to the legal system. It is also an act of illegal eviction as not only served within 40 days of our last rental payment but also happened after we complained for the state of the property. It has already been noted that the Claim Form and Particulars of Claim were never served to us. At paragraph 3(c) of the ‘Conclusion’ section of his witness statement dated 7 June, the Applicant stated; I contest the Respondent’s assertion that there has been no unlawful eviction or attempt at an unlawful eviction. Contrary to their claim, the Respondent did not follow proper procedure for gaining possession of the Property.[23]We were informed by Mr Wand (Counsel for the Respondent) who was at the hearing of the possession action, that the Applicant was at that hearing and that he made representations in respect of the claim for possession. It appears that the County Court was satisfied that;(a) there were substantial rent arears and that a mandatory ground for possession was made out, and that;(b) the claim for possession was lawful.[24]The Applicant disputed the level of rent arrears. The County Court has of course made a judgement for the arrears but in any event, at no point does the Applicant appear to have produced any proof of payment of the rent claimed against him or provide any other evidence to show that there was any error in the calculation of the arrears.[25]Clearly therefore, the Applicant has failed to establish an illegal eviction as a ground for a Rent Repayment Order.[26]Harassment: The Applicant did not provide any clear and coherent case in respect of this aspect of his claim. The relevant parts of the Protection from Eviction Act provide as follows: Unlawful eviction and harassment of occupier (3 )If any person with intent to cause the residential occupier of any premises—(a) to give up the occupation of the premises or any part thereof; or(b) to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof; does acts calculated to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence. (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.[27]The Applicant’s case in respect of harassment appeared to focus on alleged disrepair, a summary of which is as follows;(a) An issue with the boiler (affecting hot water and heating), reported on 29 March 2021 – with the Applicant commenting; “since then nothing has been done apart from periodic depressurisation”.(b) “At the same period”, a problem with the flat’s safety alarm in respect of which the alarm power cables were cut off.(c) A persistent report of damp on the bedroom walls in respect of which a wall was painted with white spray paint to cover the damp.(d) Faulty locks to the entrance door meaning that the front entrance door could not be locked since 9 June 2021.(e) Fire alarm detectors were old and defective.(f) In November 2021, a water leak from the roof. During heavy rain, water leaks from the ceiling.(g) Rent increase.(h) Defamatory comments (unspecified) made by the agents regarding the Applicant, his business and his wife.(i) The service of possession claim notices.[28]Paragraphs 22, 24, 25 & 36 of the Applicant’s witness statement of 9 February 2023 state as follows;[22]As soon as the agents were informed of our approach to withhold the rent for repairs and that we are undertaking proceeding to the First Tier Tribunal for rent determination, in addition to an application to appoint a new manager and rent repayment order due to disrepair, they started a defamatory campaign about me personally, against my wife who is a well-respected Dr and university lecturer and against my business.[24]It seems that my landlord was never informed for any of the serious defects for his property. He was only notified and informed that the agents are initiating procedures to evict me for inability to pay the rent! This was never the case, I clearly informed them that as soon as the remedial works will take place and as soon as the first-tier tribunal will determine the correct rental value of the property and consider all the aspects of the unfair rent increase, I will proceed paying the outstanding rent.[25]My landlord in his latest visit insulted me I would like to believe unintentionally, as he was misinformed and misled by the estate agents, that I do not have the ability to pay the rent as I don't have the funds. I reminded him that until July when all the issues reported we never delayed the rent for any reason.[36]We accepted the very high rent increase as the managing agents threatened to evict us with immediate effect. They also stated that there were going to bring agents to advertise the flat on various property sites.[29]The applicant sent an e-mail to the local authority on the 4th of September 2022. In that e-mail the applicant stated that he would like to report his landlord’s agents for various illegal practises and disrepair. He goes on to say; “My landlord is not directly involved nor aware I believe with the situation so I also enclose my recent letter to him informing him about the situation we are in”. The copy of the letter to the respondent in this e-mail contains the following statement; “I would like also to make clear, that I have absolutely no issues with you as a landlord and our issues are ONLY with Park lane, your managing agents.”[30]It is clear from the above summary that the Applicant’s evidence falls far short of demonstrating an offence under section 1(3) or (3A) of the Protection from Eviction Act. The Applicant’s evidence (which was contested by the Respondent) is of a failure to deal with disrepair, there is a suggestion that the Respondent’s agents failed to deal with disrepair issues in retaliation for the Applicant taking action regarding his rent and housing conditions, but this is a suggestion only, there is no evidence that there was any deliberate policy of failure to repair on the part of the managing agents with a view to forcing the Applicant to give up occupation or to refrain from exercising any right or remedy. Further, there is no evidence that the Respondent positively acted in a way to interfere with the peace or comfort of the Applicant and his family or that he intentionally withheld services. Further, the Applicant clearly stated that he had no issue with the Respondent himself regarding the problems with repairs.[31]We should note that the Respondent filed a Statement of Case and a witness statement setting out, in detail, his response is to the allegations of failure to deal with disrepair, which denied any such wholesale failure or wilful failure to repair, and which set out his actions to deal with the disrepair reported.[32]The increase in rent is clearly not an act of harassment. The Applicant freely entered into an agreement for a new tenancy at a higher rent.[33]There was nothing unlawful about the service of a Notice of Seeking Possession in respect of rent arrears.[34]No details of the alleged defamatory comments made by the agents were given by the Applicant. Even if there were defamatory comments made, this has nothing to do with the Respondent.[35]Disrepair: The applicant included the allegation of disrepair as a separate ground for the application for a Rent Repayment Order. Disrepair, on its own, is not a ground for the making of such an order. Costs[36]At the hearing the Respondent made an application for costs under Rule 13. The tribunal invited the Respondent to make a written application for costs once the decision has been issued. The Applicant will have the opportunity to respond to any such application. Name: Judge Martyński Date: 9 June 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 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).