Rent repayment orders can be made where a landlord has committed one of the property offences specified in section 40(3) of the Housing and Planning Act 2016. In a recent decision of the Upper Tribunal, (Lands Chamber), in which it was accepted one of those offences had been committed, the landlord Mr Marcus unsuccessfully appealed the decision of the First-tier Tribunal (Property Chamber) to impose a rent repayment order of £3025 against him.
On 5th October 2020, Mr Kwok and his cousin, Mr Chun, were granted a tenancy to a flat in Nottingham by Mr Marcus. Mr Kwok and Mr Chun were joint tenants, meaning either of them could be held responsible for the full amount of rent if the other did not fulfil their obligation to pay the monthly rental charge of £925.
S44(2) Housing and Planning Act 2016 provides that the amount of a rent repayment order must ‘relate to rent paid by the tenant in respect of a period, not exceeding 12 months, during which the landlord was committing the offence.’ (emphasis ours) Mr Kwok, however, only applied to the First-tier Tribunal for a rent repayment order equating to 6 months’ rent rather than 12 months, even though he and his cousin had lived there and paid rent for 12 months.
Mr Marcus argued that as Mr Kwok had only paid half the rent during those 6 months, the rent that he had been ordered to repay to Mr Kwok included rent paid by his cousin, who had not himself applied for a rent repayment order. Mr Marcus was granted permission to appeal the rent repayment order on the ground that Mr Chok was receiving a rent repayment order, based on 100% of the rent for the 6-month period of his claim, whereas he had only paid 50% during that period.
Mr Kwok stated that he had applied to reclaim the rent for himself and his cousin and that they had agreed to share the recovered rent equally. Considering the evidence that he and his cousin split the rent equally, it may have been reasonably assumed that he limited his claim to 6 months’ worth of rent because that was the proportion of the rent for the full 12-month period for which he was responsible.
When asked at the First-tier Tribunal, Mr Kwok had stated that he had claimed for the period he did because ‘I believe we – I am entitled to that amount, that is why I put it in.’
In the absence of any other reasonable explanation for the limitation of his claim, the Upper Tribunal read Mr Kwok’s that answer in evidence as indicating that Mr Kwok intended to reclaim 50% of the rent over a 12 period that he was there and which he alone was entitled to recover. This arguably does not align with Mr Kwok’s intention to share the rent repaid with his cousin. However, there could have been other reasons why Mr Kwok agreed to share the amount he was entitled to claim on his behalf.
If Mr Kwok attempted a claim for repayment of 12 months’ rent (the maximum), it would have failed because he had not paid that amount himself, and an order can only be made for repayment of rent that the tenant making the application has paid. His cousin had paid half of the total, and it would have been necessary for them both to join in the claim to enable the total amount to be recovered. Although the First-tier Tribunal described the claim as being for the full amount for six months, it was more consistent with the statutory scheme and with Mr Kwok’s explanation to view the claim as being for the whole of the rent he had paid during the full 12-month period. This was a pragmatic and sensible interpretation of the effect of Mr Kwok’s evidence, considering the way that he had limited his claim.
The answer to the question posed by the Upper Tribunal Judge in this case ‘Can one joint tenant applying alone for a rent repayment order, recover rent paid by their fellow joint tenant who has not themselves applied for an order?’ is No. However, given the finding that this was not what Mr. Kwok was trying to do, the decision of the First-tier Tribunal was upheld, and the landlord’s appeal was dismissed.