We are pleased to announce we have won our second appeal for a Rent Repayment Order (RRO) case, this time by review at the Upper Tribunal (Lands Chamber) (UT). A decision “appeared” on Baili yesterday before we had heard the good news…

The case centres around the licensing situation when a licensed HMO is sold. Is the new owner covered by the old licence? The Housing Act 2004 (HA) is very clear: s68(6) says “A licence may not be transferred to another person.”

However, the First-tier Tribunal Property Chamber (Residential Property) (FtT) had decided that the licence continued to be in force until the Local Authority (LA) revoked it as there was no explicit mention in the legislation of what should happen on the sale of a property. But the HA 2004 does not explicitly say what happens on sale…because it does not need to.

To read our full arguments in this case we provide below the links to the documents submitted to the UT and related documents.

The UT decision was immediately commented on by Mr David Smith, of Anthony Gold solicitors and Policy Director at the Residential Landlords Association. In his blog posted 14/8/2019 he criticises the UT decision and makes the quite astounding comment regarding the HA 2004:

”  …the clear intent of the legislation is to licence properties rather than people.”

Nothing could be further from the truth.

A licence for a HMO is granted to a specific person and property. Indeed the HA 2004 has far more to say about the hurdles a licence applicant has to clear than it does about a property. The key section of the legislation dealing with HMO licensing requirements is s64: Grant or refusal of licence. s64 (3) (a) to (e) specifies the “matters” that the granting authority must consider. (a) deals with the property but (b), (c), (d) and (e) all deal with the suitability of the licence applicant and their ability to manage the property.

This case could only have been brought in the first place because of the new rights given by the Government to tenants under the The Housing and Planning Act 2016 (HaPA). Government guidance on this legislation makes its purpose very clear:

If such criminal landlords could buy a previously licensed property and be ‘covered’ by the old licence it would make a mockery of the legislation. The Mischief Rule ( or Heydon’s case, 1584) applies here: it is very clear from the HA 2004 that the legislation is intended to control not only the property but the person operating it. Had the FtT decision been allowed to stand it would have opened up a back door for criminal landlords to continue to wreak havoc and misery on some of the most vulnerable tenants in the housing market. This is an important landmark case and we, at Flat Justice, are proud to have been part of it. We will now continue the fight, again on a pro bono basis, for Georgie to Get her Rent Back at the FtT…we will keep you posted of our progress here.

Links to related documents:

1. FtT Decision
2. Our draft argument requesting an appeal which we prepared for Ms Taylor
3. FtT’s refusal to allow an appeal (apologies for poor quality…but it is just legible)
4. UT’s decision to allow an appeal

There are several further submissions relating to the case but these concern the licence application date and calculation of the RRO quantum: these are matters now to be considered by the FtT.