When only one joint tenant makes an application to the First-tier Tribunal for a rent repayment order, can the tenant seek repayment of all the rent jointly paid during the relevant period? This was a question the Upper Tribunal was asked to resolve in Dowd v Martins and others [2022] UKUT 249 (LC).
The appellant was the landlord of a three-bedroom flat in Worcester Park, Surrey. From 7 July 2019 onwards, the property was occupied by five persons living in more than two separate households. For the purposes of the Housing Act 2004, the flat was a house in multiple occupation and was required to be licensed. It was not in dispute that the appellant had failed to licence the flat. He was therefore guilty of the offence of being in control of or managing an HMO that required a licence and was not licensed, contrary to section 72(1) of the 2004 Act.
The respondents applied to the FTT for an RRO to be made in accordance with section 41 of the Housing and Planning Act 2016. Originally, the application was made by all five tenants who occupied the flat. Drennan and Nagyyova and Martins and Da Silva occupied two of the bedrooms under separate joint assured shorthold tenancies. The third bedroom was occupied by a sole tenant under an AST.
In November 2021, the tenants’ application was heard by the FTT. At that stage, one of the joint tenants had withdrawn from the application. The FTT was satisfied beyond a reasonable doubt that during the relevant period, 7 July 2019 to 6 April 2021, the appellant had committed the offence under section 72(1). The FTT made an RRO. The only reduction applied by the FTT to the RRO was a 25% on account of the utilities paid by the appellant landlord.
The landlord appealed on five grounds. One ground was not pursued because the UT failed to give the landlord permission to adduce further evidence. Two other grounds of appeal, which arose from case management decisions made by the FTT, were dismissed because the UT found that the FTT had neither erred nor acted irrationally.
The appellant was, however, successful on two of his grounds of appeal. The first concerned the amount of the RRO the landlord was ordered to pay Martins. Martins and Da Silva had been joint tenants of one of the rooms in the flat. They were jointly and severally liable for the rent. Although Da Silva had withdrawn from the application for an RRO, the appellant was ordered to repay Martins the entirety of the rent she and Da Silva had paid during the relevant period, save the reduction applied for utilities paid by the appellant. The landlord argued that this was unfair. The FTT should have only ordered him to repay Martins’s half of the rent during the relevant period. The fact that they were jointly and severally liable for the rent did not mean that one person was entitled to claim back the whole of the rent paid for the relevant period. The UT agreed to do so otherwise would represent either a windfall to Martins or a repayment to Da Silva in circumstances where he had withdrawn from the application.
The landlord’s second successful ground of appeal concerned the FTT’s quantification of the RRO. The UT found that the FTT had failed to take into consideration the seriousness of the offence and whether any deductions should be made taking into account the factors set out in section 44(4) of the 2016 Act.
Elizabeth Dwomoh is a barrister at Lamb Chambers
