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In total, twenty Rent Repayment Order applications have gone to hearing at the London First-tier Tribunal Property Chamber (Residential Property) (FtT) in July, six more than in June.

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For the most part, tenants have enjoyed wins!

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An especially offensive offence?

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We have one instance of the RRO award having been reduced by 20% purely on the grounds that there was no ‘deliberate flouting of the law’ (point 46).

This is in direct opposition to Mohamed & Lahrie v Waltham Forest [2020], which tells us that licensing offences are a strict liability offence.

Secondly, it is in direct opposition to most case-law, which normally views reliance on letting agents as an insufficient excuse. Indeed, the defences throughout July show landlords are always keen to foist the blame onto letting agents, except that, other than in this strange case, those efforts were unrewarded.

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Utility bills?

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In July, there have been two cases where utilities have been deducted from a 100% award.

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Yet we’ve also had Judge Walker’s judgment: inclusive bills are not offered ‘out of some altruistic motives but to ensure that the property is attractive in the market, so that they can find tenants prepared to pay the amount asked in rent. Therefore, there is no basis, either in law or in practice, for disregarding part of the rent to reflect the costs of such services or inclusive bills.’

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What’s the scope of poor conduct?

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For tenants hoping to hold the landlord responsible for harassment from a co-tenant, we’ve got two differing responses in July.

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For tenants who feel their landlord has demonstrated similar negligence on this matter, Judge Daley’s ruling will be of assistance.

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Poor conduct or harassment?

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Harassment, as it pertains to RRO offences, is defined in notoriously tricky terms – not so much by action as intent (an intent to remove the tenant or prevent them from exercising their rights).

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So, for example, if the landlord ‘persistently withdraws services reasonably required for the occupation of the premises’ (3Ab), such as electricity or water, this may be harassment.

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One applicant, however, has posited that the continued disrepair in the property is grounds for a harassment allegation, arguing that mismanagement is itself a withdrawn ‘service’ (point 26).

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Although Judge Percival did not uphold the accusation, his reasoning is by no means discouraging: ‘we do not exclude the possibility that management services could be covered by the term [‘service’]’.

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Given this statement, there is the chance that persistent disrepair could, in time, be viewed as harassment.

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‘Good conduct’?

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In LON/00AM/HMF/2020/0236 below, Judge Tagliavini considered that the landlord had used a managing agent and that the latter had carried out maintenance in a timely manner. This was disputed by the Applicants. Nonetheless a 35% reduction in the RRO was made by this Tribunal panel on that basis. This decision is being appealed by the Applicants and Flat Justice is acting in a pro-bono advisory role so we cannot comment further here.

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Guardians

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Guardianship RRO cases, such as LON/00AG/HMF/2021/0042 below, are quite rare at the FtT: surprising considering that there are so many guardianship companies around, especially in London.Of course, a series of convictions might result in a banning order on a guardianship company which would be devastating to their business. The company involved here, Global 100 Ltd., doesn’t seem to have been too concerned about this and trotted out all the usual non-arguments in defence:

Strangely, R sought support from another Flat Justice case, 49 Russell Hill Road, Croydon, CR8 2XB (LON/00AH/HMK/2020/0021), despite the fact that the judgment there had found that a HMO had been created by Camelot, the now defunct guardianship company, who was a licensee of the council, that a licensor (Camelot, vis-à-vis their guardians) could be the Respondent to a RRO application and that Camelot should have applied for a HMO licence. Just as well R didn’t mention another of our Guardianship cases, discussed in our blog here.

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For any other guardians bringing a RRO application: don’t forget to mention that these guardianship companies are completely ignoring their own legal advice in mounting such defences. Ad-Hoc www.adhocproperty.co.uk; DEX www.dexpropertymanagement.co.uk; Dot Dot Dot www.dotdotdotproperty.com; Guardians of London www.guardiansoflondon.com; Live-in Guardians www.liveinguardians.com; Lowe Guardians www.loweguardians.com; VPS Guardians www.vps-guardians.co.uk have commissioned legal advice by Giles Peaker, Andrew Arden, & Andrew Dymond, all eminent practitioners in this field. In their paper, The law on property guardianship: A white paper setting out the health, safety and legal status of security through occupation (2017), they advised:

“Most guardian HMO properties will be HMOs under the standard test”…and continued by advising that most exemptions to licensing of HMOs would not apply to guardianships.

Zeros at 12 o’clock

Some RRO cases unfortunately ended in no award:

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