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23/01/2022

RROs, company directors and reasonable excuses

A couple of Upper Tribunal appeal decisions on rent repayment order cases.

Kaszowska & Ors v White (HOUSING – RENT PAYMENT – whether a rent repayment order may be made against a director of a company landlord) (2022) UKUT 11 (LC)

We saw the FTT decision in this case here. It was for an unlicensed HMO for a property guardian residence, and Camelot were the guardian firm, The FTT had held a licence was required, but Camelot had had a reasonable excuse, and, (given that Camelot were in liquidation and the application had been brought against a former director of Camelot), that an RRO could not be made against a director of a landlord company. That latter issue was taken to the Upper Tribunal.

The UT, referencing the Court of Appeal decision in Rakusen v Jepson (our note), held that:

a) An RRO could only be made against the immediate landlord.

b) Section 40(2) Housing and Planning Act 2016 only provides for an RRO to be made against ‘the landlord’.

c) Repayment by someone who was not the landlord who had received the ent was not contemplated.

So, no RRO could be made against a director of the landlord company in person.

 

Chow & Anor v Skipper & Anor (HOUSING – RENT REPAYMENT ORDER – selective licensing under Part III of the Housing Act 2004) (Rev1) (2022) UKUT 5 (LC)

This was an appeal by the landlords, the Chows, against an RRO made by the FTT for failure to licence in a selective licensing area. There were two grounds. The FTT had failed to consider relevant facts, and the FTT had wrongly decided that it had no discretion to depart from an award of 100% of the rent,

On the relevant facts point, the Chows explained that they thought they had renewed the licence for the property in time, but had inadvertently clicked ‘renew’ on the wrong property – the second property did not require a licence and was let to the council. It was not entirely clear if the Chows had fully explained this to the FTT, or presented the licence receipt in evidence at the FTT.

The UT admitted new evidence, including a letter refunding the licence fee on the other property which post dated the FTT decision, on Ladd v Marshall principles.

There was a reasonable excuse for the property not being licensed, and no RRO should be made. The issue of the amount of award therefore did not arise, but Williams v Parmar [2021] UKUT 244 (LC) was clear that an ward of less than the maximum could be made.

 

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

2 Comments

  1. Chris

    So if ‘the’ landlord gets an agent or other proxy to violent entry/illegally evict you rather than doing it ‘themselves’ – you (as a tenant) can’t make a RRO* against the landlord (because it ‘wasn’t them’)?

    Can the council still make an RRO for unlicensed HMO against director (based on more permissive 2004 Act)?

    *Or rather…you can apply as they are a person s41(1), the FTT just doesn’t have jurisdiction to make an award as they are not ‘the’ landlord s40?

    Reply
    • Giles Peaker

      No, agent or proxy still doing it for the landlord. Landlord commits the offence.

      Reply

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