This was an appeal of the First-tier Tribunal Property Chamber (Residential Property) (FtT) finding that it could not make a RRO as it held that the property was exempt, being owned by a health service body specifically exempted under schedule 14 The Housing Act 2004 (HA). This exemption, however, only kicked in because the FtT found that the owner was also the “person having control”. Yes, that chestnut again! Judgment here.
It was this latter point that was key to the appeal’s success. The issue of “a person having control” has played a role in a number of RRO cases recently, e.g. the Court of Appeal (CA) cases involving Global Guardians and part of another guardian case appeal coming to the UT soon…another Flat Justice case.
Here the UT explored the history of the origins of the term “person having control”, tracing it back to the Towns Improvement Clauses Act, 1847.
The upshot of this analysis was the conclusion that the persons having control must be the person that, with all the leases in position at a particular time, has the right to grant a lease of the property at the “rack rent”, another term with a long history and one which was also at issue in the Global case above.
The FtT had concluded in the instant case that the owner here had granted a lease to Global. Therefore, clearly, the owner was no longer in the position to grant a lease to another party and could not have been in control. The control lay instead with the lessee and Respondent here, Lowe Management Ltd. the guardianship company that had granted occupancy rights to the guardians, the appellants.
The judgment helpfully clarified the position of the two companies involved: Lowe Guardians Ltd. (LG) & Lowe Management Ltd. (LM). As in the CA Global Guardians case there had been two companies involved with the Subject property. Although the lease here had been assigned to LG, LG then granted permission to LM to assign ‘licences’ to the guardians. LM was clearly identified as the Respondent here. A similar arrangement was apparent in the Global case.
As Lowe (Management Ltd!) was in control of the property, and, as the FtT had already found, was also managing the property, the appeal was allowed and the matter was remitted back to the FtT for deciding on whether to make a RRO and for how much. Watch this space.