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Share Article: Too late for another party

In an intricate and novel Rent Repayment Order case, Gurusinghe & Others v Drumlin Limited, the Upper Tribunal (Lands Chamber) grappled with the question of whether the First Tier Tribunal (Property Chamber) had the authority to add/substitute a party to proceedings after the 12-month limitation period prescribed by section 41(2)(b) of the Housing and Planning Act 2016 had expired. Drumlin Limited, represented by Karol Hart of Freemans Solicitors, successfully argued that an Applicant in a Rent Repayment Order  case could not add or substitute a respondent after the 12-month limitation period had passed.

Drumlin Limited had been the leaseholder of the property on a long lease since the early 2000’s in the London Borough of Camden. They had instructed an agent to let the property to tenants. They instructed the agent to update them on any changes to the housing regulations. Whilst the property was being let through the agent, Camden Council introduced its HMO Additional Licencing Scheme, meaning that HMO licencing regulations had changed in Camden. The resultant change led to Drumlin failing to Licence the property, which meant they could be committing an offence whilst more than 2 tenants were residing at the property.

The tenants became aware the property was unlicensed and applied to the First Tier Tribunal (FTT) for two Rent Repayment Orders , covering a period of some 18 months, and one was for a full year of rent amounting to £39,000. The tenants claimed the landlord had committed an offence under Section 72(2) of the Housing Act 2004. During their tenancy period, they were informed of the full details of their landlord and provided with their address. However, the Applicants proceeded to make the RRO application in the name of the property’s freeholder, who was not their landlord. Karol identified immediately that the freeholder was not the appropriate landlord and should not be the subject of the application. This was the primary basis of the, ultimately successful, argument opposing the RRO.

The Applicants, realising they had mistakenly named the incorrect party in the application, applied to the FTT, some 15 months after the conclusion of the tenancy, to add/substitute Drumlin Limited to the RRO application. This application was made on the day of a hearing. Karol Hart, with limited time, opposed the application, asking the FTT to consider the caselaw of William Hill Organisation Limited v Crossrail Limited [2016] UKUT 275 (LC) which indicated that the FTT did not have the jurisdiction to add/substitute a party into a case after the expiration of a statutory time limit In RRO cases. This is the 12 month limitation period prescribed by section 41(2)(b) of the Housing and Planning Act 2016. The FTT agreed with the arguments presented by Karol Hart and refused to add/substitute a party, meaning Drumlin Limited could not be held liable for the £39,000 RRO.

The tenants then applied to the Upper Tribunal on a point of law arguing that the FTT did have the power to add/substitute a party, even after the expiry of a statutory deadline. The Upper Tribunal, in a thorough examination of the law in this area and in agreement with Karol, concluded they were unable to add/substitute a party to proceedings outline of the 12-month time limit prescribed by section 41(2)(b) of the Housing and Planning Act 2016. The Tenants application for that RRO, in the amount of £39,000, was then sent back to the FTT. The result was that the RRO application for £39,000 was struck out, with the landlord having nothing to pay on this application, as the tenants had taken action against the incorrect person.

RRO orders can be made in a range of cases, including for alleged offences, including

  • Control/Manage an HMO contrary to Section 72(1) of the Housing Act 2004;
  • Control/Manage an Unlicensed House contrary to Section 95(1) of the Housing Act 2004;
  • Failure to comply with an improvement notice contrary to Section 30(1) of the Housing Act 2004;
  • Failure to comply with a Prohibition Order contrary to Section 32(1) of the Housing Act 2004;
  • Breach of a Banning Order contrary to Section 21 of the Housing and Planning Act 2016;
  • Using violence for securing entry contrary to Section 6(1) of the Criminal Law Act 1977; and
  • Eviction or harassment of occupiers contrary to Sections 1(2), (3) or (3A) of the Protection from Eviction Act 1977.

This case demonstrates the need to instruct experienced representatives in these types of cases as early as possible.

How can we help?

Expert advice in this case helped this landlord significantly reduce the size of the award made against him. Freemans Solicitors are a leading provider of Rent Repayment Order 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.

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