Posted by Michael Field, Partner/Barrister
In the appeal of Mitterhuber v Hernadez & Balota, [2025] UKUT 194 (LC) decided last month, the Upper Tribunal considered the matter of ‘only or main residence’, within the context of an application for a Rent Repayment Order.
Hernadez & Balota had claimed in an application for a Rent Repayment Order that the landlady, Sonja Mitterhuber, had committed an offence by letting an unlicensed HMO property to them, contrary to s. 72 of the Housing Act 2004. The property was situated in an area designated by the local housing authority as requiring a licence if it was occupied by three or more persons across two or more separate households. In other words, it fell within an area covered by the Additional Licensing scheme.
To succeed in obtaining a Rent Repayment Order, Hernandez & Balota needed to prove to the criminal standard that the property was, in law, an HMO. Hernandez & Balota argued that they could demonstrate this because the property met what the Housing Act 2004 calls ‘the standard test’ to be an HMO, as detailed in s.254 of the Housing Act 2004. The standard test includes several requirements, most of which were not disputed in this appeal. The contested issue between the parties was whether enough people occupied the living accommodation as their ‘only or main residence’. Put simply, if Hernandez & Balota could not prove that at least one other occupant used the property as their ‘only or main residence’ during the period of their claim, their case would fail.
How does the Tribunal determine ‘only and main residence’? It has previously been established that the Tribunal may need to adopt a pragmatic approach when deciding the issue. In this appeal, Upper Tribunal Judge Elizabeth Cooke referred to the earlier Upper Tribunal case of Opara v Olusemi, in which the Tribunal stated: –
“31. … In the absence of co-operation from other residents, cast-iron certainty is not going to be achievable on this point because of the difficulty of proving a negative; and of course cast-iron certainty is not required, only proof “beyond reasonable doubt”. How is the tenant to show that another occupant has no other home, or no other main home? This element of the offence must to some extent be a matter of inference from the circumstances.”
Tribunal Judge Cooke carefully examined the lower court’s decision to determine what evidence was available to Hernandez & Balota to prove ‘only or main residence’ of the other occupants. She concluded that there was no evidence in Hernandez’s & Balota’s witness statements and no recorded evidence from the hearing in the First-tier Tribunal. Hernandez & Balota. did not know the names of the other occupants and seemed to know very little about them.
In summary, there was no direct evidence to prove that the other occupants regarded the property as their only or main residence. There was also no evidence upon which it could reasonably be inferred that the other occupants used the property as their only or main residence. As a result, the appeal was allowed and the decision to make a Rent Repayment Order by the First-tier tribunal was set aside. The Upper Tribunal substituted its own decision, refusing the application for a Rent Repayment Order by Hernadez & Balota.
The need to prove only or main residence is always a factor I consider when examining alleged breaches of s. 72 Housing Act 2004. I have argued this point to prevent regulatory action for an alleged offence under s. 72 Housing Act 2004. The issue, when raised, can be fiercely contested. This decision is welcome as it emphasises the importance of satisfying the criminal standard of proof when claiming an offence has been committed under s. 72 Housing Act 2004. It also highlights the necessity of carefully considering each individual element that an applicant must prove to that criminal standard when considering an application for a Rent Repayment Order.
This case highlights the necessity of engaging experienced representatives in these types of cases at the earliest opportunity.
How can we help?
Freemans Solicitors are a leading provider of HMO advice, and our experienced team will be happy to help with your enquiry. Contact Michael Field, Karol Hart, or Julian Hunt in our Crime Team on 020 7935 3522 or hmolawyers@freemanssolicitors.net. We can advise on investigations, diversion from prosecution, prosecutions of HMO Offences, and as well as ancillary matters, such as Rent Repayment Orders.