Kelly helped her daughter and fellow students apply for a RRO from their landlord…only the landlord had died even before the tenants had moved in. Apparently, the demise of the landlord did not prevent the same landlord from issuing a s21 notice in their name. This bizarre ‘mortua manu’ and other ‘Oddball’ experiences in our first guest blog by a DIY Applicant for a RRO.
As well as representing Applicants directly, Flat Justice also helps tenants make RRO applications on their own by providing free advice and materials. We encourage DIY’ers to relate their experiences on our blog pages to help other Applicants avoid any pitfalls. We welcome comments and experiences from all DIY RRO Applicants, whether helped by Flat Justice or not: please post a comment or write to us through our feedback form if you would like to contribute. Coming soon: Flat Justice’s DIY forum for discussion of all matters RRO.
In March 2020, as the prospect of a national lockdown became more and more likely, many students across the UK struggled with mental health problems, concern for the health of themselves and their loved ones, and the financial burden of having to pay for student residence in which they were unable to live. Fortunately, University-owned halls of residence and many private landlords were sympathetic to the immeasurable effects the pandemic would have on students and therefore allowed contracts to be terminated early or offered reduced rent payments.
My daughter’s landlord had a large portfolio of student accommodation, so we contacted the letting agent ( A specialist letting agent, only dealing with university students and therefore up to speed with HMO Licensing – surely!) to ask if the landlord had business disruption insurance or if they would release her from the agreement. She had already paid the accommodation fees up until May 2020 and was not asking for a refund of this but simply that they would not charge her or reduce rent payments beyond this date for a property she would no longer be living in.
The agent replied saying “We have not requested to your landlord that you be released from your tenancy agreement and furthermore, if rent payments are not paid as expected, we will no longer be able to charge a management fee to our landlords, removing our primary source of income” They also said “We operate in an industry that has already been decimated by the tenant fee ban that was introduced in June last year.”
As sympathetic as we felt towards the poor agents for no longer being able to charge extortionate administration fees (not), it was not quite compelling enough for us to cease trying to contact the landlord! Incidentally, my daughter and her housemates had not escaped the tenant fee as they had paid a tenant fee of £1080 for the property a few months before the ban was introduced.
We decided to take matters into our own hands and attempt to contact the landlord ourselves. On the original tenancy agreement, the landlord named was the man we assumed that we needed to contact. However, the person at his registered address said he was no longer there. Upon googling his name, we discovered something rather curious – we found an obituary that stated he had passed away over a year ago. My daughter contacted the letting agent to clarify the name of the landlord and they confirmed that the landlord was still the same and that he still lived at the address listed on the tenancy agreement. We decided that the obituary must have been a coincidence and continued to search for the contact details of the landlord.
We still had no luck contacting the landlord so my daughter asked the letting agent again and they finally admitted that he had died – 13 months earlier – but despite being deceased he was, according to the letting agent, still the landlord in control of the property. They even served a Section 21 Notice in the name of the deceased landlord 14 months after his death!
After much toing and froing, in July 2020, I contacted the council’s licensing team to see who held the HMO Licence and to hopefully, finally find out who the landlord actually was. It transpired that the council had not been informed of the death of the landlord and the executors of the Will had not applied for a licence or a temporary exemption notification. Therefore, the property had been unlicensed for the duration of my daughter’s tenancy.
The council said they would assist us in applying for a Rent Repayment Order and directed us to The Citizens Advice Bureau for assistance. This was in the midst of the first lockdown and my daughter was only able to have a brief telephone conversation with Citizens Advice Bureau because of staff shortages and the demand placed on them during the pandemic. We therefore decided to take a DIY approach and conducted our own online research. I began an application, acting as a representative for a total of six students.
The application was very basic and consisted of: the Tenancy Agreement; proof that all rent had been paid on time for the full year (the students paid for the remainder of the year when they couldn’t make contact with the ‘new landlord’); confirmation from the council that the property was unlicensed; the Grant of Probate and the Title Deeds of the property, showing that the property hadn’t been sold or transferred. A copy of the bundle was delivered to the letting agent as we still did not know for sure who the correct person in control of the property was.
Following the Tribunal directions, the respondent, who the Tribunal identified as the Estate of the landlord, submitted their defence. Part of the defence was that the respondent, effectively the daughter of the deceased owner, had no experience of being a landlord and that the letting agent should have made her aware of her legal responsibilities. She also said that the role of landlord was new to her. On viewing the letting agent’s website, to my shock and surprise, the person the Tribunal identified as the respondent, who had “no experience of being a landlord”, was on a video, more than a year earlier, advertising the letting agent! She was even labelled as ‘student landlord’. When I made the tribunal aware of this, she claimed I was ‘misrepresenting the facts’ and she was actually the estates manager of the property portfolio!
There were moments when the process became overwhelming and I doubted the evidence I had submitted would prove the case. I was searching for online articles regarding the Tribunal hearing and I came across the Flat Justice website. I emailed them to say the person in control of the property was claiming that she didn’t realise that the HMO licence ceased to be in force on the death of the licence holder. I was sent the most helpful information and they told me I must argue that not licensing an HMO is a “strict liability offence” and that the Tribunal should not consider “mens rea” of the respondent – citing Mohamed & Lahrie v Waltham Forest . It was explained that this is case law, ruling that inexperience or lack of knowledge is not an excuse for a licensing offence. Just to make sure that the Tribunal and the respondent knew that I had at least some knowledge, I was also advised to mention Vadamalayan v Stewart  – case law that rules the RRO award should be based on 100% of the rent paid.
The Tribunal found in favour of the students and awarded £27,358, 100% of rent paid.
That was not the end of the matter though. The landlord applied for permission to appeal, continuing to profess, despite video evidence showing her as a landlord, that she was new to the role and did not know about licensing regulations. Her solicitor drafted a seven-page document full of legal speak to submit to the Tribunal. I spent some time researching and Flat Justice kindly cast their eye over the grounds for permission to appeal and said that they had no real chance of being granted permission. This reassured me but, being a novice to the legal system, I still doubted whether my evidence would ‘cut the mustard’. Thankfully, the First-tier Tribunal agreed and refused permission. Not one to concede defeat, the landlord then instructed her solicitor to appeal to the Upper Tribunal. They had no new evidence but said they wanted to have another chance of their case being heard. They objected to two of the authorities from the Upper Tier Tribunal: decisions that the Judge in the First Tier Tribunal had referred to when making their decision – Vadamalayan v Stewart  and Mohamed & Lahrie v Waltham Forest . Fortunately, I received an email from the landlord a few weeks later saying that she wasn’t pursuing the case to save me further expense! I think she meant saving herself further expense as her solicitor’s website shows fees of over £200 an hour and her costs were obviously starting to rise. It seems she had finally realised that she was unlikely to succeed and she was actually saving herself further expense!
It took almost a year of filling out forms, gathering evidence and learning all things legal, and I would be lying if I said it had not, at times, been stressful. Flat Justice have some amazing resources on their website for people like me who applied for a Rent Repayment Order independently. My advice to anyone who believes that they have a case is to research, ask for advice and go for it!
Spot on Kelly. Getting an RRO is so often a long haul. You need tenacity and resolve. I often wonder how many people start and then give up, daunted by protocols. procedures, confusing legalese and landlord’s solicitors throwing out toothless threats of unreasonable costs orders to try and intimidate. Then when you get the award you realise its only stage one, you have to actually get the money. We’ve had to learn the new skill of claiming third party debt orders and freezing bank accounts.