With the introduction of of the new grounds of possession looming – 1 May 2026 – we are very pleased to bring you as a seasonal gift this guest post by Nick Bano, barrister, and Jamie McGowan, pupil, of Garden Court Chambers, helpfully looking at the routes to redress for abuse of those grounds and their merits.
One of the great controversies during the passage of the Renters’ Rights Act was the question of safeguards against landlords abusing the new grounds for possession. If a landlord evicts a tenant on the basis that they intend to sell up, move in, or instal a family member, and then re-lets the property (probably at a higher rent), what redress will tenants have?
The Act contains its own new safeguards, with a beefed-up regime for rent repayment orders in the First-tier Tribunal. What is interesting, though, is that these kinds of problem were actually tackled long ago: in 1920 Parliament created a statutory tort, which entitled tenants to sue for damages if the landlord obtained a possession order by deception. This has remained in force under various statutes ever since, and it now hides in plain sight under section 12 of the Housing Act 1988.
The new mechanisms and the old statutory tort will now exist in parallel, and in this post we set out the pros and cons of each. There are also new powers for local authorities (fines and prosecutions) but we are going to concentrate on the mechanisms available to tenants and their advisers.
Rent repayment orders under the RRA
One of the aims of the RRA was to substantially bolster the tribunal’s powers to make RROs. Most significantly, these orders will now be available against superior landlords to fix the Rakusen v Jepsen problem (our note), and the maximum amount of an order will increase from one year to two years’ rent.
The basic principle of the redress scheme under the RRA is that tenants can make use of this improved RRO regime where the landlord abuses possession grounds. Tenants will be able to apply to the Tribunal when a landlord has committed one of six new criminal offences, two of which relate to obtaining possession:
- When the landlord re-lets or markets a property within a 12-month ‘restricted period’ after obtaining possession under Ground 1 or 1A (contrary to the new section 16J(2) of the 1988 Act);
- When the tenant surrenders a tenancy within 4 months of a landlord misusing a possession ground (contrary to the new section 16J(1) of the 1988 Act).
For the purposes of the ‘re-letting’ offence, the 12-month prohibition starts when the landlord serves (or purports to serve) a section 8 notice relying on grounds 1 or 1A, or when a claim form or particulars of claim is filed (new section 16M of the 1988 Act).
The new ‘re-letting’ offence will tend to be committed after the tenants have already left the property, either by leaving voluntarily in response to the landlord giving notice, or by leaving because a possession order has been made. But this is not a requirement: some landlords might be foolish enough to market the property before the tenant has left, and the RRA makes it clear that this situation is also caught by the new offence (16E(4) of the 1988 Act).
If a tenant discovers that their landlord or former landlord has committed the re-letting offence, they can apply to the tribunal for an RRO (section 40(3) of the Housing and Planning Act 2016). But, for many tenants, finding out about the offence is going to be the first hurdle. In all but the most flagrant and obvious cases, tenants are going to have to wait a year, and then try to find out whether the property has been re-let or marketed during that restricted period.
It is to be hoped that the new Private Rented Sector Database will help tenants to find out if their former landlords have committed the re-letting offence. But the RRA has left the details of the database to the Secretary of State to determine.
When, however, the tenant has found out that the property has been marketed or re-let during the 12 months, these applications should be relatively easy to determine because it appears to be a strict liability offence. There is a statutory defence available to those who commit the offence “otherwise than as a landlord” (e.g. lettings agents), but in cases involving offences by landlords, tenants simply need to prove that the property was marketed or re-let during the prohibited period.
There are various other exceptions (set out in section 16F) which landlords themselves can raise as statutory defences, (e.g. that the new letting was to a landlord’s family member, or occupation by an imminent purchaser of the property). In cases where those defences are raised, there may be a more wide-ranging factual dispute. Otherwise, there is very little that needs to be proved.
As to the ‘misuse of a possession ground’ offence, this will be committed when:
- The landlord serves (or purports to serve) a section 8 notice, or files a claim form or particulars of claim;
- The landlord was not entitled to rely on the ground(s) for possession that they cited (note that this is not limited to Grounds 1 and 1A – it applies to any ground);
- The landlord knew or was reckless as to the fact that they were not entitled to rely on the ground(s); and
- The tenant surrenders the tenancy within 4 months.
The key difficulty here is that tenants will have to prove (to the criminal standard) the landlord’s mens rea (the “knowingly or recklessly” requirement). It will not be enough to simply show that a landlord relied on a possession ground which it later emerges they were not entitled to.
It is also important to note that this ‘misuse’ offence is only committed if a tenant surrenders the tenancy voluntarily within four months. If the tenant leaves because a possession order has been made, this particular offence would not be made out even if the landlord had been entirely dishonest about the reason for seeking possession.
Claims for damages under s.12
Section 12 of the 1988 Act creates a statutory tort and a jurisdiction to award damages to the tenant where the landlord has abused the grounds for possession. It is made out in when:
- The landlord has obtained an order for possession; and
- It is subsequently “made to appear to the court” that the order was obtained by misrepresentation or concealment of material facts.
Despite being on the statute books in one form or another for more than 100 years, this provision has fallen out of use. That was (no doubt) because most landlords with assured shorthold tenants have been evicting them using section 21, which tends to be far easier than misusing the Schedule 2 grounds for possession.
Unlike the RRO jurisdiction, this is a purely civil matter, and so the ordinary civil standard of proof applies.
There are some old authorities that consider the statutory predecessors to section 12. In Thorne v Smith [1947] KB 307, for example, the landlord had pleaded a ground 1-type ‘returning owner occupier’ case in respect of a pre-Rent Acts tenancy. The tenant gave up possession by agreement because he had been advised that it was hopeless to defend the claim, but the landlord then immediately sold the house. The tenant successfully sued for damages.
Awards of damages can be very significant indeed. They are awarded on the basis of tort law principles: see the surprisingly recent case of Clements v Simmonds (unrep.) (2002) EWHC 1652 (QB), per Burton J at (44). In that case the landlord sold the building with vacant possession for £1.5m (again, having pleaded a Rent Act ‘returning owner-occupier’ ground, and then selling up immediately afterwards) and the tenant’s damages for her loss of a controlled tenancy were assessed at £60,000. Adjusting for inflation, and applying a Simmons v Castle uplift, that would be worth over £150,000 today.
It is true that the tenant in Clements had lost a tenancy with a controlled rent, and damages may well be lower under the current de-controlled regime. But it is clear from Clements, Thorne and judicial comments in illegal eviction cases that the loss of a fully assured tenancy is a serious matter. Damages can be high, particularly when compared to the two-year maximum of an RRO (on today’s average rents, a two-year order would be worth about £33,000, and the tenant is not entitled to an award for any part of the rent that was paid by housing benefits).
Comment and comparison
There will be pros and cons of both options to consider in every case.
On the one-hand, RROs present the upfront hurdle of the criminal standard of proof. However, the Upper Tribunal has cautioned the FTT against being over-zealous in its application and pointed out that “it is legitimate to draw inferences from proven circumstances, under the criminal standard of proof as under the civil standard” (Mortimer & Ors v Calcagano (2020) UKUT 0122 (LC) at (35)). If the evidence is strong enough, RROs can be relatively simple. And, while the lower civil standard of proof applies to section 12 claims, tenants will have to prove something much more nebulous and difficult-to-uncover: misrepresentation or concealment, rather than the solid facts that give rise to the statutory offences.
When it comes to quantum the FTT tends to ‘shoot from the hip’ (in line with the Upper Tribunal’s characterisation of RROs as “blunt instruments” in Daff v Gyalui at (58)). But even that approach may give more certainty than a section 12 claim under the current legislative framework: these are going to be adventurous claims until the first few cases are decided.
A further advantage of the FTT is that it is a comparatively relaxed procedural jurisdiction. Section 12 claims, by comparison, are likely to have the ‘feel’ of illegal eviction claims: highly contentious civil litigation, with all of its procedural rigour and expense, and against lay and professional opponents with varying levels of competence.
Set against that, the possibility of costs recovery in the County Court (or possibly even the High Court, if the tenant’s case is that the Clements approach to damages should be followed) means that section 12 claims are far more viable for CFA funding than RROs.
In some circumstances, it may be possible to pursue both an RRO for a ‘re-letting’ offence and a section 12 claim in relation to the same repossession. RROs are penal in nature, whereas section 12 claims are for damages in tort, so the landlord cannot argue against double-recovery (Ficcara v James (2021) UKUT 0038 (LC) and Daff v Gyalui (2023) UKUT 134 (LC) at (58)). It may even be possible to ask the FTT judge to ‘double hat’ as a County Court judge, and hear both matters together (Kowalek v Hassanein Limited (2022) EWCA Civ 104 at (34)).
A tenant could not, however, bring a section 12 claim together with a tribunal claim for the ‘misuse’ offence because they are mutually exclusive: section 12 only arises after a possession order has been made, but section 16J(1) requires the tenant to have surrendered the tenancy.
It is important to note that the limitation period for applying for an RRO is currently 12 months, which will become two years when clause 98 of the RRA comes into force. In cases where limitation is approaching, it may be sensible to apply for an RRO as soon as possible and then consider applying for a stay while engaging in any necessary pre-action conduct in respect of any civil claim.
One of the great harms of the 1988 Act was that landlords came to treat tenancies (and tenants) as disposable, single-use things. It would be a mistake for landlords to carry this attitude over into the new statutory regime. From now on, ending tenancies by sharp practice could be financially ruinous for landlords.
Nick Bano is a barrister, and Jamie McGowan, is a housing specialist pupil, at Garden Court Chambers.
Incredibly useful, as always. How are advisors funding advice and representation in these claims?
Well nobody is doing them yet! 1 May 2026 commencement.
RROs are typically done on a damages based agreement (proportion of penalty recovered) as there is no legal aid, and can’t do a CFA in the Tribunal, as no costs awards.
Countu COurt claims – we’ll have to see. I image conditional fee agreements may be possible.
Does anyone know whether the newly doubled limitation period for FTT claims will apply retroactively? Based on the enacted HPA 2016 amendments’ wording, I’m inclined to say yes, unless there could be some ECHR arguments against application in such a way.
I’ve also always wondered whether repayment claims could be awarded alongside Homes (FFHH) Act damages, which are also, of course calculated as percentages of one’s… rent.
I suppose it must be simply a question of how the damages are framed in the HFFHHA: if it is simply damages to be assessed as a function of rental amounts/periods, then maybe no conflict? But if it is rather framed as a retroactive reduction in the amount of rent due then I suppose it is difficult to order repayment of something which has effectively already been negated and returned.
Oh my, you really have got things confused.
First, the two year period for RROs will only apply to offences committed after commencement – so 1 May 2026. So not retrospective (although the relevant rent period could extend back to 2024, say, for an illegal eviction carried out after 1 May 2026.)
Second, RROs are for specific offences, not for unfitness for human habitation, which is a wholly separate civil claim.
Neither RRO penalties or Unfitness damages are ‘getting rent back’.
An RRO penalty is just that, a penalty calculated as a proportion (up to 100%) of the rent actually paid by the tenant (not including Universal Credit), during the period of the offence being committed.
General damages for Unfitness are for loss of amenity. The amenity value is assessed in relation to the rent payable as a measure. It doesn’t matter how the rent was paid (or even if it was paid, though then the landlord may have a counterclaim). It is not a ‘reduction in rent’.
There are plenty of sources of information available on this – including on this site. Can I suggest doing some research?
The HPA 2016 amendments cannot be relied on, commencement and transitional provisions have generally been left to secondary legislation. As Giles says, it would appear that the provisions will take effect from 1 May 2026, based on when the offence was committed, per the RRO guidance for local authorities published on 13 November 2025.
This also suggests the two year maximum rent provisions take effect on 1 May 2026, also as Giles suggests. Although, it is only as clear-cut as that in respect of ‘one-off’ offences such as unlawful evictions. For ‘ongoing’ offences it is more complex because these might straddle the pre and post commencement period (i.e. begin before 1 May 2026 and continue afterwards). In those circumstances, the guidance says “the FTT will judge the part of the offence that was committed before the commencement date in accordance with the old law, and apply the new law to the part of the offence that was committed on or after the commencement date”.
This indicates, in respect of ‘one-off’ offences committed on or after 1 May 2026, that rent could be recoverable back to 2 May 2024. But if an ‘ongoing’ offence such as a licensing offence was committed from 1 March 2025 to 28 February 2027 and an RRO was brought later in 2027, then it would seem that the maximum rent would be capped at 22 months, despite there being a 24 month offence, because the first 14 months were committed before 1 May 2026 and so captured by the old rules and capped at 12 months.
Local authority guidance below, further RRO guidance aimed at tenants expected to be published before 1 May 2026.
https://www.gov.uk/government/publications/rent-repayment-orders-guidance-for-local-authorities/rent-repayment-orders-guidance-for-local-authorities#commencement-and-transitional-provisions
Thanks Jamie, that is very helpful.
Well, fair enough on the HFFHHA part, and thanks for clearing that up. Oddly enough, I have spent some time diving in to the statute(s) and trying to wrap my head around the general mechanism a few times, having already understood the basic idea through an excellent talk by Nick, though admittedly only ever out of spontaneous curiosity (never with the determination of having something actually riding on it), but I have always wound up having to give up empty handed.
That said, on the RRO point, of course RROs have been officially characterised and purposively construed as being a penalty in nature, but I at least haven’t seen the right information to justify in my own mind going so far as to call them “just that.”
They name of the device seems specifically to indicate that it is a repayment of the received rent that is being ordered, which is why there is case law to say that, where there are arrears, those need first to be satisfied from any award before anything is actually to be seen by the triumphant applicant, quite unlike the position which you helpfully set out with general damages for unfitness. In fact, never mind complex scenarios of interleaved arrears layered between periods for which rental liabilities were settled; it is trite RRO wisdom that in order for a RRO to be made, the rent must first have been paid, and furthermore, this was statutorily set out as being required to have been additionally paid not only in respect of but also during the relevant period for the offence.
Now granted, this gives two independent bases for the proposition so that neither especially bolsters the other, as it would have done if we rather had case law explicitly ascribing the latter principle to, while deriving it from, a simple literal reading of the device’s statutory name (ie, “RENT REPAYment orders”), but instead we have the name of the device, and then we have express statutory provision that it must pertain to this or that rent.
But still, the name itself seems enough to me, and on second thought, furthermore how could it pertain to “rent” in the first place if it was not an order for the return of said rent?
As for the HFFHHA damages, I had understood from Nick’s talk that it was calculated as a percentage of rent, but didn’t know much beyond that, although it had to me sort of resembled other specific statutory regimes that I’ve been told about, such as consumer rights legislation which entitles let-down consumers to claim “price reductions” for inadequate products.
As Giles has pointed out, such damages aren’t affected by RROs (or vice versa) because they use the rent as a point of reference rather than operating as reimbursement. Even if damages were expressed as a reduction in rent, that wouldn’t affect the amount of an RRO: s52(2) HPA 2016 provides “[f]or the purposes of this Chapter an amount that a tenant does not pay as rent but which is offset against rent is to be treated as having been paid as rent”. So if a landlord and tenant agree a reduction in rent because of a breach by the landlord, for RRO purposes, rent will be treated as having been paid in full. Damages obtained after the event would be treated no differently.
The RRA amendmendts to HPA 2016 make it even clearer that RROs (like disrepair and HFFHHA damages) are not reimbursements of rent but rather sums calculated by reference to the rent, by replacing the word “repay” with “pay” in s44(3) HPA 2016 (although the main reason for that amendment is so that newly liable respondents such as superior landlords and directors of corporate landlords cannot argue that they cannot be ordered to ‘repay’ sums which they have not themselves been paid).
Yeah thanks Jamie, this is very helpful indeed. Do you by chance accept direct access instructions?
Jamie McGowan wrote “This indicates, in respect of ‘one-off’ offences committed on or after 1 May 2026, that rent could be recoverable back to 2 May 2024”
…presumably even earlier in a continuous tenancy that predates 2 May 2024 as tenants can choose which rental period they wish to claim. For example if UC was received from May 2024 to May 2026 they might wish to apply for rent paid prior to May 2024 without UC assistance. See Sharma & Subramani v Chun Kwok Lau DECISION ON REVIEW LON/00AJ/HMF/2018/0053 & confirmation in Irvine v Metcalfe & ORS (2021) [2021] UKUT 0060 (LC) at s27.
Hi Guy. In respect of ‘one-off’ offences, I don’t think either of the cases you mention would enable rent paid in respect of a rental period prior to May 2024 to be recovered. This is because the language in s44(2) HPA 2016 relating to ‘one-off’ offences differs to the language relating to ‘ongoing’ offences.
Irvine and Sharma both involve licensing offences, which are ‘ongoing’ for RRO quantum purposes, and in relation to which s44(2) says that the RRO must relate to rent paid in respect of “a period, not exceeding 12 months /(2 years under RRA), during which the landlord was committing the offence”. In Sharma, the FTT rightly noted that the generality of the phrase “a period” meant that the period selected does not need to be the one immediately prior to the RRO application. In Irvine, the UT indicated that the 12 month period need not be continuous (although this is obiter, I find the FTT generally follows it – in one case even where the offence had a 6 month interruption because of a gap between licensing schemes). The constraint is simply that the landlord must have been committing the offence during the rental period selected.
However, in relation to ‘one-off’ offences, s44(2) says that the RRO must relate to rent paid in respect of “the period of 12 months/ (2 years under RRA) ending with the date of the offence”. So if an unlawful eviction is committed on 1 May 2026, the rental period used to calculate the RRO could not go back any earlier than 2 May 2024, even if UC covered all of that period but prior to May 2024 the tenant covered their own rent. I suppose, because the Kowalek issue has been addressed, in theory the date of the actual rent payment could be considerably earlier than 2 May 2024, but that payment would need to be “in respect of” the period beginning 2 May 2024.
What you say about an RRO potentially relating to a rental period earlier than May 2024 (per Sharma) could in theory be possible with an ‘ongoing’ offence, but not by dint of the RRA. For the RRO to relate to a rental period in May 2024, that necessarily means the offence was being committed at that time. Based on the LHA RRO guidance from November 2025, this means that the ‘old law’ would apply to that part of the offending period, and so cap it at 12 months worth of rent (although those 12 months could fall across a period longer than 12 months per Sharma). If the offence was ongoing (although it may have been interrupted per Irvine) after 1 May 2026, then only the offending period on or after that date will be determined by the ‘new law’. So, I think the first ‘ongoing’ offence in respect of which a 2 year RRO will be available will be one that ends on or after 30 April 2027 (and, necessarily, began on or before 1 May 2025).
In other words, in relation to ‘ongoing’ offences committed prior to 1 May 2026, there will be no quantum advantages to waiting for implementation before making an RRO application. With ‘one-off’ offences, it will generally be much simpler: if you are unlawfully evicted on 30 April 2026, your RRO will be capped at 12 months’ rent, if it happens the next day, it’ll be capped at 2 years. It could of course get very complex, e.g. in the case of a s1(3) PEA 1977 offence, which for RRO quantum purposes is a ‘one-off’, but in reality normally involves conduct like “persistently withdrawing services” over a period of time. What if the landlord starts shutting the gas off pre-1 May 2026 and carries on afterwards? That’s probably one for the UT!
NB – I’m currently relying on the Gov guidance for LHAs which is quite general, but the commencement and transitional provision SIs may go into more detail, which could change things.
Hi Jamie,
Yes you’re quite right. Thank you for the clarification. Indeed eviction events often involve prior harassment: perhaps we will have landlords agreeing that they harassed the tenant egegiously before 1st May to get an RRO for that prior event rather than after 1st May!
Ha – yes we probably will encounter many adventurous arguments like that. Although almost certainly in the alternative: “I didn’t do it at all, but if I did, I definitely stopped on 30 April 2026”. So it’s unlikely to make cases any easier!
It’s important to note, as I’m sure you all know, however, that, while imany (even Ftt judges – perhaps unwittingly) might routinely conceive of harassment as a series of acts, it is wrong to take the mere use by the section heading of s1 PEA 77 of the word harassment and then based on that unconsciously import the wholly unrelated requirement of PHA 97 for “a course of conduct,” as I’ve seen many do. In other words, it is wrong to conceive of occupier harassment as necessarily a continuing offence, and HPA 16 certainly doesn’t classify it as one. Admittedly, s1(3/3A) does describe “acts” that might interfere with occupiers’ peace or comfort, but this seems to me much less clearcut than the need for a course of conduct and even verges on a stylistic and semantically insignificant word choice, especially if considering the interchangeability of singular and plural nouns provided by the interpretation act. In this regard, I would probably say that each distinct act liable to interfere with peace and comfort would constitute a separate s1(3)/s1(3A) offence, giving rise to its own separate potential HPA 16 relevant period.