Tenant Secures Rent Repayment Order Against Unlawful Landlord

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER ([NAME]) Case reference : LON/00BG/HMB/2018/0002 Property : [NAME] [NAME], [ADDRESS] [POSTCODE] Applicant : [redacted] : In person Respondent : [redacted] : [NAME] [COUNSEL] [NAME], Solicitor Type of [NAME] : [NAME] for a rent repayment order Tribunal member : Judge [NAME] [NAME] and venue of hearing : 2 November 2018 at 10 [ADDRESS] [POSTCODE] Date of decision : 17 December 2018

DECISION

Note: the numbers in square brackets referred to the pages in respect of the hearing bundle, so that [6] is page 6 of the bundle.

Decisions (1) The tribunal is satisfied, beyond reasonable doubt, that the landlord, [NAME] [RESPONDENT], has committed an offence under section 1(3) and/or section 1(3A) of the Protection from Eviction Act 1977;

2 (2) Accordingly, the tribunal makes a rent repayment order in favour of the applicant, [NAME] [APPELLANT], in the sum of £2,115.62, to be paid by the respondent, [NAME] [RESPONDENT] within 28 days of the date of this decision; (3) The tribunal makes no award of costs, but orders [NAME] [NAME] to refund to [NAME] [NAME] the sum of £300 in respect of the tribunal issue and hearing fees, also within 28 days of the date of this decision. [NAME]

1. The applicant tenant, [NAME] [APPELLANT], applied for a rent repayment order against the respondent, his landlord [NAME] [RESPONDENT], pursuant to sections 40 to 44 of the Housing and Planning Act 2016 (“the [NAME]”). 2. [NAME] [NAME] claimed repayment of £3,295, being the rent paid by him for a period of 6 months and 18 days from the start of his tenancy on 20 January 2018, to the date of his [NAME] form, on 7 August 2018.

3. The grounds for seeking a rent repayment order are alleged offences committed by [NAME] [NAME] under sections 1(2), 1(3) and 1(3A) of the Protection from Eviction Act 1977 (“the [NAME]”) (which relate to alleged attempts to unlawfully evict [NAME] [NAME] and acts of harassment); an alleged offence under section 30(1) of the Housing Act 2004 (failure to comply with an improvement notice); and alleged offences under the Management of HMO (England) Regulations 2006. Hearing 4. The hearing took place on the 2 November 2018. [NAME] [NAME] appeared in person. [NAME] [COUNSEL] also appeared and was represented by his solicitor, [NAME] [COUNSEL] [NAME].

5. At the outset of the hearing, [NAME] [NAME] said that he had just been handed copies of documents that [NAME] [NAME] had filed and served on 30 October 2018 and, at his request, the tribunal allowed him time to go through the documents with [NAME] [NAME]. The hearing then began at 10.30am.

6. The tribunal had the benefit of a hearing bundle prepared by [NAME] [NAME]. This comprised a copy of his [NAME] form, the tribunal’s directions, his witness statement with exhibits “VS1” to VS30” and [NAME] [NAME] witness statement, which exhibited the documents upon which he relied.

7. On 30 October 2018, [NAME] [NAME] filed and served a 10-page letter with additional submissions (including, for example, applications to strike

3 out various of [NAME] [NAME] documents) and enclosing five additional exhibits “VS31” to “VS35”. Facts 8. [NAME] [NAME] is the owner of [NAME], [NAME], [ADDRESS] [POSTCODE] (“the Flat”), a three-bedroom flat on the third floor of a purpose-build block. An assured shorthold tenancy between [NAME] [APPELLANT] as landlord and [NAME] [APPELLANT] as tenant commenced on the 20 January 2018 for an initial period of 6 months at a rent of £500 per month [29-31]. Although in the tenancy agreement the “Property” is defined as “[NAME]”, the tenancy was in fact for one of the rooms in the Flat. The other rooms were already let to [NAME] [NAME] (who had been there for some four years) and to [NAME] [NAME], who soon left and was replaced in about March 2018 by [NAME] [NAME]. 9. [NAME] [RESPONDENT] claimed that [NAME] [RESPONDENT] effectively acted as the landlord’s agent within the Flat. While such a formal relationship was not established, in evidence [NAME] [NAME] accepted that he exercised a degree of control over who occupied the Flat; saying that, because he was living there, he would typically find replacement tenants when someone left, by advertising on the Gumtree website.

10. According to [NAME] [NAME] there were no issues in relation to “anti-social behaviour or rent repayments” for the first five months of his tenancy, that is until 28 and 29 June 2018, when [NAME] [NAME] contacted [NAME] [NAME] and then sent him a text message, purporting to give him four weeks’ notice to quit the Flat. [NAME] [NAME] flat-sharer, [NAME] [NAME], painted a somewhat different picture, giving evidence of friction with and alleged “passive-aggressive behaviour” by [NAME] [NAME], throughout the tenancy. [NAME] [RESPONDENT] appears to have made complaints to the landlord about these matters, it seems that [NAME] [RESPONDENT] did not raise them as issues with [NAME] [NAME] during the first five months of the tenancy.

11. The witness statement of [NAME] [NAME] exhibits numerous pages of printed text messages and emails passing between him and [NAME] [NAME], and between him and his fellow [NAME]. [NAME] [NAME] was assiduous to ensure that all his communications were in writing, which allowed him to give comprehensive evidence of events, which he also describes, in similar detail, in his witness statement.

12. With regard to the notice to quit, [NAME] [NAME] sent a text to [NAME] [NAME] to tell him that the notice had to be in writing (a hard copy), dated, signed and also give the grounds for the notice. That advice and the requirement that he should be given 24 hours’ notice of any visits to the flat were repeated to [NAME] [NAME] on a number of occasions. [NAME] [NAME] also went so far as to provide [NAME] [NAME] with copies of the relevant law. It appears that, at one stage, [NAME] [NAME] agreed that

4 he would send a valid notice to quit by post, but the evidence suggests that this was not done prior to the [NAME], even after [NAME] [NAME] chased for it.

13. The first complaint of an unlawful attempt to evict [NAME] [NAME] was on 25 July 2018, when he received a threatening text message, which he immediately reported to the police and which seems was sent by [NAME] [NAME] son. [NAME] [NAME] claimed that the text message had caused him “harassment, alarm, distress and anxiety” [20] and he responded to the message, by asking [NAME] [NAME] to stop issuing threats [45]. He also supplied [NAME] [NAME] with the contents of section 1 of the [NAME]. 14. [NAME] [NAME] also relied upon an allegation that [NAME] [APPELLANT] had violated his rights as a tenant by failing to fix a disrepair problem with the water supply to the bathroom, from 25 July 2018. He alleged that there had in fact been problems since 3 June 2018 and that the cutting of the water supply to the wash hand basin by a contractor amounted to the withdrawal of services and, therefore, intentional harassment, in order to force him to move out. 15. [NAME] [NAME] referred to a number of alleged threats with physical violence issued by [NAME] [NAME] by text on 2 and 5 August 2018, which he also reported to the police, and to an incident on 28 August 2018, when [NAME] [NAME] son allegedly chased him outside in front of [NAME] [22]. However, the tribunal does not take into account that alleged incident, as it post-dates the [NAME] made on 7 August 2018.

16. Several unannounced entries into the flat on 10 and 13 August 2018 (it appears by contractors) were said to amount to further intentional harassment (though, again, these post-dated the [NAME]). Lastly, [NAME] [NAME] relied upon an alleged failure by [NAME] [NAME] to comply with an improvement notice apparently served upon him on 20 July 2018 and “multiple offences in relation to the Management of HMO (England) Regulations 2006”. 17. [NAME] [NAME] answered these allegations in his witness statement of 22 October 2018, with paragraphs 6 onwards reflecting the same numbered paragraphs in [NAME] [NAME] own witness statement. The tribunal went through the allegations with [NAME] [COUNSEL], giving [NAME] [COUNSEL] solicitor an opportunity to cross-examine; and [NAME] [COUNSEL] gave evidence to support his case, cross-examined by [NAME] [NAME]. Thereafter, evidence was given by [NAME] [RESPONDENT] on behalf of the landlord. [NAME] [RESPONDENT] described “sustained aggressive behaviour” by [NAME] [NAME] within the Flat leading to “threats of violence”, which made him feel unsafe and caused him eventually to leave the Flat altogether.

5 The tribunal’s decision 18. The tribunal is satisfied, beyond reasonable doubt, that the landlord, [NAME] [RESPONDENT], has committed an offence under section 1(3) and/or section 1(3A) of the Protection from Eviction Act 1977.

Accordingly, the tribunal makes a rent repayment order in favour of the applicant, [NAME] [APPELLANT], in the sum of £2,115.62, to be paid by the respondent, [NAME] [RESPONDENT], within 28 days of the date of this decision. Reasons the tribunal’s decision 19. The relevant provisions of section 1 of the Protection from Eviction Act 1977 are as follows: “(2) If any person unlawfully deprives the [NAME] of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the [NAME] had ceased to reside in the premises. (3) If any person with intent to cause the [NAME] of any premises— (a) to give up the occupation of the premises or any part thereof; or (b) to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof;

does acts likely to interfere with the peace or comfort of the [NAME] or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence. (3A) Subject to subsection (3B) below, the landlord of a [NAME] or an agent of the landlord shall be guilty of an offence if— (a) he does acts likely to interfere with the peace or comfort of the [NAME] or members of his household, or (b) he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence,

and (in either case) he knows, or has reasonable cause to believe, that that conduct is likely to cause the [NAME] to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises. (3B) A person shall not be guilty of an offence under subsection (3A) above if he proves that he had reasonable grounds for doing the acts or withdrawing or withholding the services in question.” 20. Section 1 of the [NAME] creates three offences which may be considered together. The first offence, contrary to section 1(2) is

6 concerned with unlawful eviction (the statute using the words “deprives”); the other two offences, contrary to sections 1(3) and 1(3A), are concerned with harassment of a [NAME]. The main difference between the two harassment offences is that the one contrary to section 1(3) can be committed by any person and it is necessary to prove intention, whereas the offence contrary to section 1(3A) can be committed only by the landlord or agent and no intention need be proved (though knowledge or reasonable belief do need to be). Under the criminal law, the penalties are the same for each of the three offences. Offence under section 1(2): unlawful eviction 21. In the present case, the tribunal is not satisfied that the high threshold for an offence under section 1(2) of the [NAME] has been reached.

22. The text messages on 25 July 2018, containing a threat to throw [NAME] [NAME] personal belongings outside on Sunday, and messages on 2 and 5 August 2018, threating his eviction, clearly caused [NAME] [NAME] alarm and distress, but in the tribunal’s opinion they fall short of an attempt to deprive [NAME] [NAME] of his occupation of the Flat. In short, no action was taken to try and effect an eviction; [NAME] [NAME] was not deprived of his occupation permanently for any period of time; nor was he the subject of an attempt to do so. Offences under sections 1(3) and 1(3A): harassment The acts 23. With regard to the other two offences, under sections 1(3) and 1(3A) of the [NAME], [NAME] [NAME] relies, first, on threats of physical violence and to the integrity of his belongings and, secondly, to the withdrawal of the supply of water. (i) Withdrawal of the water supply 24. Dealing with the withdrawal of the water supply first, this concerned a problem with water leaking from the wash hand basin in the bathroom. [NAME] [NAME] had reported it to [NAME] [NAME] about a month previously and, on 25 July 2018, a [NAME] visited and turned off the water to the basin, because he did not have the necessary parts to fix the leak. The bath/shower still had water supply and there continued to be water in the kitchen. Subsequently, there were delays reinstating the water supply, but as [NAME] [NAME] submitted, these were partly due to the conduct of [NAME] [NAME] in resisting entry by contractors because he had not received 24 hours’ notice of the visits.

7 25. In the tribunal’s view, the supply of water could not be said to have been withdrawn or withheld by the landlord, at all, let alone with intent, knowledge or belief that [NAME] [NAME] would give up occupation of the premises as a result. (ii) Threats made by the landlord and his son 26. That leaves the threats made by [NAME] [NAME] and his son in connection with [NAME] [NAME] refusal to leave the Flat, without first receiving a valid notice to quit; and we start by saying that insofar as [NAME] [APPELLANT] relied on his rights as a tenant in this regard, there can be no criticism of him for doing so.

27. In the present case, the tribunal is satisfied that the following acts were done by [NAME] [RESPONDENT], as landlord, or by his son, as agent of the landlord, which were likely to interfere with [NAME] [RESPONDENT] peace or comfort; and that [NAME] [NAME] intended, or knew, or had reasonable cause to believe, that this conduct was likely to cause [NAME] [NAME] to give up occupation of the premises, or to refrain from exercising any right in respect of the premises (for example his right to remain, his right to exercise quiet enjoyment and his right to insist on his right to receive a valid notice to quit as a precondition of being required to leave the premises): (i) On 25 July 2018 at 6.50pm, [NAME] [NAME] son sent a text message to [NAME] [NAME] initially offering to help him remove his belongings and leave the Flat but ending with the threat “If not, I will come on Sunday and leave your belongings outside” [43]. [NAME] [NAME] then followed that up with a further text message at 7.26pm, first, complaining about [NAME] [NAME] “bad behaviour” and then requesting him “Please could you follow the instructions [in the son’s e-mail] and do not text me anymore.” [44]; (ii) On 2 August 2018 at 3.38pm, [NAME] [NAME] sent a text message to [NAME] [NAME] initially complaining that he had not extended his initial six months stay in the premises (in the original agreement) and then stating “You have zero rights as a Tenant as you are well over your stay. I will come over at my own time and deal with you and evacuate [sic] you if need be.” He goes on to say “I have dealt with tenants worse than you and I can deal with you without sweat […] Don’t respond to this text and harass me. Just leave my property and we close the case.” [49]; (iii) Again on 2 August 2018, at 6.18pm, [NAME] [NAME] sent a text message to [NAME] [NAME] where he threatened that “I will now come over to evacuate [sic] you and throw out your belongings if it is still in my house by end of today.” [52]; (iv) On 5 August 2018 at 1.01pm, [NAME] [NAME] sent a text message to [NAME] [NAME] to say “Stop issuing threats to remove/throw me

8 physically and my belongings from my room. Stop issuing threats”. This resulted in an immediate response from [NAME] [NAME] stating, amongst other things “This is your last warning […] I will be arriving anytime so please take your belongings and leave as I don’t want to be responsible for your belongings. By the end of the day please leave the premises.” [53]. The intention 28. The offence under section 1(3) is more difficult to prove because it is essential under this offence to establish the necessary intent. In the present case, this would be the intention either to cause [NAME] [NAME] to give up occupation of the premises or to refrain from exercising any right or pursuing any remedy in respect of the premises.

29. Intent may be inferred from the facts but, from case law, it appears there needs to be clear evidence that the accused desired the consequence to occur, or may have foreseen it as a by-product of his action; but, in the latter case, it may require consideration of the probability of the consequence coming about.

30. In the present case, the tribunal is satisfied that the necessary intent is proved by the words actually used by [NAME] [NAME] and by his son, acting on his behalf, which [NAME] [NAME] adopted. The tribunal is satisfied beyond reasonable doubt that the threats were made with the specific stated desired outcome, namely that [NAME] [NAME] should leave the Flat.

31. Further, and even if we were wrong about the necessary intent being established for an offence under section 1(3), the tribunal is satisfied beyond reasonable doubt that [NAME] [NAME] has (also) committed an offence under section 1(3A), where it is not necessary to establish intention; but, rather, knowledge or reasonable belief of the potential outcome must be established.

32. Section 1(3A) only requires that the landlord “knows or has reasonable cause to believe” that his conduct was likely to cause the [NAME] to leave the premises, or to refrain from exercising his rights. The use of the word “reasonable” indicates that the belief should be determined objectively; and the tribunal is satisfied that [NAME] [NAME] must have known or believed his threats were likely to cause an [NAME] to leave the premises, or to refrain from exercising his rights as a tenant. Other alleged offences 33. The tribunal is not satisfied that [NAME] [NAME] has committed the offence of failing to comply with an improvement notice under section 30(1) of the Housing Act 2004, because there was insufficient

9 information to establish this beyond reasonable doubt. In particular, there was no copy of the improvement notice in the papers and there was insufficient evidence of non-compliance. Equally, the tribunal was not satisfied that [NAME] [NAME] was guilty of multiple offences in relation to the Management of HMO (England) Regulations 2006, which, in any event, are not relevant offences for the purposes of [NAME] a rent repayment order. Decision to make a rent repayment order 34. Having concluded that [NAME] [NAME] had committed an offence under sections 1(3) and/or 1(3A) of the [NAME], the tribunal exercises its discretion under section 43(1) of the [NAME] to make a rent repayment order. The amount of such an order is limited by section 44(2) and, in relation to an offence under section 1(3) or 1(3A) of the [NAME], is to be for a period of 12 months ending with the date of the offence. The last offence was the threat on 5 August 2018 and, by the tribunal’s calculations, the rent paid by [NAME] [NAME] up to and including that date is £3,254.80 (198 days at £500 per month).

35. The tribunal has decided to exercise its discretion and make a rent repayment order because [NAME] [NAME] conduct in this case was serious and inexcusable. For someone who professes to have been letting properties for more than 12 years and who owns more than one such property, [NAME] [NAME] displayed a breath-taking ignorance of the law and of proper legal procedures for terminating a tenancy and for regaining vacant possession of premises. He gave inadequate notice to quit to all his tenants, because he wished to sell the Flat; and when one of those tenants, [NAME] [NAME], insisted on his rights, [NAME] [NAME] resorted to unacceptable threats of violence and intimidation to try and make him leave the premises. Amount of the order 36. When considering the amount of the rent repayment order, the starting point is not 100% of the rent paid, which is the mandatory amount if there had been an actual conviction: see section 46 of the [NAME].

37. Further, in determining the amount to be repaid, the tribunal has had regard to two decisions of the Upper Tribunal relating to the amount of a rent repayment order under the Housing Act 2004, namely Parker v Waller [2012] UKUT 301 (LC) and Fallon v Wilson [2014] UKUT 300 (LC).

38. Under the 2004 Act, section 74(4) provided that where there has not been a conviction the tribunal shall order such amount as it considers reasonable in the circumstances. While sections 44 and 45 of the [NAME] do not include the word “reasonable”, given the similarities

10 between these provisions and the relevant provisions of the 2004 Act, the tribunal considers that the guidance provided in these Upper tribunal decisions remains relevant under the [NAME].

39.

Accordingly, the tribunal has proceeded on the basis that (i) there is no presumption that there will be a 100% refund of payments made, and (ii) the benefit obtained by the tenant in having had the accommodation is not a material consideration.

40. Section 44(3) of the [NAME] requires the tribunal to take into account the conduct of the landlord and the tenant, the financial circumstances of the landlord and whether the landlord has at any time been convicted of an offence to which Chapter 4 of the [NAME] applies.

41. The tribunal takes into the account that [NAME] [NAME] had received several complaints about [NAME] [NAME] from [NAME] [NAME], who found him a difficult personality, aggressive at times, and a person who he alleged was inconsiderate and lacking in care for the premises. However, while these allegations certainly played on [NAME] [NAME] mind, in the text messages that the tribunal has seen, [NAME] [NAME] appeared more agitated by the fact that [NAME] [APPELLANT] consistently asserted his legal rights as a tenant. Even where there had been friction between the [NAME] – something which, it should be said, [NAME] [NAME] disputed hotly – that does not excuse [NAME] [RESPONDENT] as landlord for failing to follow due process.

42. The tribunal also notes [NAME] [NAME] assertions that he is not a violent person and that he did not agree with his son’s text threat; [NAME] [NAME] evidence that he had no issues with [NAME] [NAME], who “had always been a fair and honourable person”; and [NAME] [NAME] assertions that there was no intention in [NAME] [NAME] text messages. However, none of these can detract from the clear written threats by [NAME] [NAME] to unlawfully evict [NAME] [NAME], which we have no doubt he wished and intended [NAME] [NAME] to act upon; and which he knew, or had reasonable cause to believe, would have that effect. Such threats are simply unacceptable in a landlord and tenant relationship.

43. It appears that the tenants paid the usual utilities bills, in addition to the rent, so these expenses to do not fall to be deducted from any rent repayment order. [NAME] [NAME] mentioned the existence of a mortgage and the fact that he did not make any money from his various let properties, no evidence was adduced of these matters.

44. There was no evidence that [NAME] [NAME] had any previous convictions, of any kind.

11 45. Taking all these factors into account, the tribunal makes a rent repayment order in the sum £2,115.62, representing 65% of the rent paid by [NAME] [NAME] to [NAME] [NAME] during the relevant period. [NAME] for costs and refund of fees 46. In his [NAME], [NAME] [NAME] asked the tribunal to award him back the costs of the [NAME] should he be successful. This was understood to be an [NAME] for reimbursement of the £100 issue fee and the £200 hearing fee, both of which he had paid.

47. Given that [NAME] [NAME] had to pay these fees to bring his claim and that he was successful in the proceedings, the tribunal orders [NAME] [NAME] to refund the £300 to [NAME] [NAME], within 28 days of the date of this decision. For the avoidance of doubt, this sum is in addition to the rent repayment order.

48. Insofar as [NAME] [NAME] may have been seeking an award of legal costs (apart from reimbursement of fees paid), such a request is refused. This is because there was no evidence of any legal costs being incurred by [NAME] [NAME]; because the tribunal is first and foremost a “no costs” jurisdiction; and because there was no evidence of any unreasonable conduct by [NAME] [NAME] in relation to the proceedings, that would justify an award of costs for unreasonable conduct, pursuant to rule 13 of the Tribunal’s Procedure Rules. Name: [NAME]: 17 December 2018

Rights of appeal

By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written [NAME] for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28-day time limit, such [NAME] must include a request for an extension of time and the reason for not complying with the 28-day time limit; the tribunal will then look at such reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed, despite not being within the time limit.