It is rare that the Court of Appeal pronounce on rent repayment orders under the Housing and Planning Act 2016. Yesterday, in an important judgment in Rakusen v Jepson & Ors [2021] EWCA Civ 1150 the court did just that.
The court found that a superior landlord is unable to be a respondent to an application for an RRO where the property is an unlicensed HMO.
Background to the case
The case concerned a common circumstance – the property owner lets it to a letting company; the company in turn grants tenancies to various individuals who occupy.
The First Tier and then the Upper Tribunal refused Mr Rakusen’s application to strike out the RRO application against him – they considered they were bound by the case of Goldsbrough v CA Property Management Ltd [2019] UKUT 311 (LC), [2020] HLR 18, which held that the 2016 Act was not restricted to the immediate landlord. The language of the Act did not restrict the ambit to immediate landlords.
The Court of Appeal’s findings
The Court of Appeal disagreed with the previous judgments. Under s.40(2):
“A rent repayment order is an order requiring the landlord under a tenancy of housing in England to— (a) repay an amount of rent paid by a tenant”.
The “landlord” must be the same as the landlord under the same tenancy as held by the “tenant” referred to in paragraph (a).
This interpretation makes more sense, of course. Otherwise, a superior landlord may have to repay rent it has never received. It was also unlikely that Parliament intended that the tenant could make an application against the superior landlord where the local authority could not.
If you would like advice on bringing or defending an application for a rent repayment order, please contact me or alternatively contact my clerks.