Tenant Wins Rent Repayment Order Against Landlord for Unlawful Eviction

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER ([NAME]) Case reference : BIR/00CS/HMK/2024/0037 Property : 17 [ADDRESS], [POSTCODE] Applicant : [redacted] appeared as a litigant in person Respondent: [redacted]

[NAME] who appeared as a litigant in person assisted by a friend Mr [NAME] of application :

Application for a rent repayment order by [NAME] 40, 41, 43, & 44 of the Housing and Planning Act 2016 (“the 2016 Act”) Hearing

Tribunal Members

Centre City Tower Birmingham 16 April 2025

Judge [NAME] Mr A McMurdo Mr N Atherton

Date of Decision : 7 May 2025

DECISION

1. The Tribunal makes a rent repayment Order against Mr [APPELLANT] in the sum of £1,144.33 to be paid to the Applicant by 5pm on 30 May 2025.

2

REASONS

2. Ms [APPELLANT] (“the Applicant”) was the tenant of [ADDRESS], Rowley Regis, West Midlands (“[NAME]”) from December 2019 until 15 April 2025, when she was locked out of [NAME] by her landlord Mr [RESPONDENT] (“the Respondent”). She lived at [NAME] with her partner Mr [APPELLANT] and her daughter. The Applicant occupied [NAME] under an assured shorthold tenancy agreement dated 1 April 2022 at a monthly rent of £700.00 payable on the first day of each month. [NAME] is a 3-bedroom semi-detached house with two living rooms, kitchen and bathroom. Outside there is a garden to the side and rear and a timber shed.

3. The Tribunal confirmed as a preliminary issue that there was no evidence the Respondent had at any time been served with an improvement notice and consequently could not be said to have failed to comply with one. That was accepted by the parties.

4. The only offence which remained to be considered by the Tribunal is that on 15 April 2025 it is alleged the Respondent unlawfully deprived the Applicant of her occupation of [NAME] by changing the locks and by refusing to allow her to re-enter [NAME] on the 16 April 2025. If proved this is an offence under section 1(2) of the Protection from Eviction Act 1977, which is a specified offence under section 41 of the 2016 Act entitling [NAME] to seek a rent repayment order( see Appendix 1).

5. The core facts concerning the alleged offence are not in dispute. The Respondent candidly admits that on the 15 April 2025 he visited [NAME]. Having secured peaceful entry and ascertained no one was in occupation, he arranged for the locks to be changed. He also admits that when the Applicant and Mr [APPELLANT] returned to [NAME] the next day he refused to allow them to enter [NAME].

6. The Respondent’s case is that in doing so he did not commit an offence under Section 1(2) of the Protection from Eviction Act 1977 (“the 1977 Act”) because he believed and had reasonable cause to believe that the Applicant had ceased to reside at [NAME].

7. On 6 August 2024 the Applicant applied to this Tribunal for a rent repayment order asserting that she had been unlawfully deprived of occupation of [NAME]. She filed a full statement of case and two supplementary statements, each with a bundle of documents. The Respondent also provided a statement of case and bundle of documents.

8. The evidence demonstrates a prima facie offence under Section 1(2) of the 1977 Act (set out in the Appendix 2), in that the Respondent gained entry to [NAME] and changed the locks with the intention of depriving the Applicant of occupation. However, section 1(2) provides a statutory defence if the Respondent can prove “that he believed, and had reasonable

3 cause to believe, that the [NAME] had ceased to reside in the premises.”

9. The issues for the Tribunal are:

a. Is it beyond reasonable doubt that an offence under section 1(2) of the 1977 Act has been committed by the Respondent.

b. Is it more likely than not that the Respondent believed and had reasonable cause to believe that the Applicant had ceased to reside in [NAME].

c. If the answers to the above questions are respectively, yes, and no, should we exercise discretion to make a rent repayment order and if so in what amount.

10. The undisputed evidence demonstrates beyond reasonable doubt that a prima facie offence under section 1(2) has been committed. The relevant evidence provided by the Respondent in support of the statutory defence is as follows:

11. In January 2024 the Respondent issued possession proceedings following service of a section 21 notice on the Applicant. The proceedings were withdrawn in February 2024 on the advice of the agent dealing with the proceedings, because there was no evidence the Applicant’s deposit had been protected. The Respondent addressed the deposit issue and was intending to serve a further section 21 notice in March 2025. However, before this was put into effect he was notified by his letting agent that the Applicant had found alternative premises and would be vacating.

12. The bundles include numerous text messages between the letting agent and the Applicant which are not disputed. It was unclear how these exchanges were communicated to the Respondent, but it is not disputed that the Respondent was notified that the Applicant would vacate on the 23 April 2025. There were several exchanges between the Applicant and agent about handover of keys and a date of 20 April 2025 was eventually put forward for the agent to attend [NAME] and collect the keys.

13. However, prior to this several events came to the attention of the Respondent that he says caused him to believe that the Applicant was planning to move out earlier than indicated. The events were:

a. The Applicant failed to pay the April’s rent instalment. b. On 14 April 2024, the Applicant applied to the [NAME] for the return of her deposit. c. The Applicant’s Facebook profile showed pictures posted on 13 April 2025, of the interior of her new home, it was furnished with her dogs

4 playing in the background. This indicated to him that the family had already moved in. d. When he visited [NAME] on the 15 April 2024 it was empty. The locks had been changed but the back door was unlocked, the electricity was off, and there were no personal belongings.

14. The Respondent states that [NAME] had not been cleaned and that the Applicant had failed to make good damage caused by the removal of fixtures and belongings. He arranged for [NAME] to be secured which meant changing the locks because he did not have keys to those installed by the Applicant. He states that he did not change the locks to prevent the Applicant from entering [NAME] because he reasonably believed that she was no longer residing there.

15. On the 16 April 2024, he returned to [NAME] with his eviction agent and cleaners. The Applicant and Mr [APPELLANT] arrived later to collect their remaining possessions and take up and remove some laminate flooring they had installed. The Respondent denied there were any remaining possessions. On the advice of his agent that the Applicant was not entitled to remove the flooring because it was a landlord’s fixture, the Respondent refused to allow them entry. There was an altercation on the doorstep which resulted in the police being called. There are differing accounts of the purpose of the Applicant’s return to [NAME] and the involvement of the police, but it is not disputed that the Applicant and Mr [APPELLANT] left and did not have any further access to [NAME].

16. The Respondent stated that the events outlined above, in particular the removal of all the Applicant’s belongings, with no indication she intended to return, caused him to reasonably believe the Applicant had vacated [NAME] earlier than expected and surrendered the tenancy by conduct.

17. The Applicant has a different account of these events. She states that [NAME] was not in good order when she moved in. The heating and hot water systems were in working order, but the décor and flooring were dated and tired. The kitchen units and floor were in very poor condition and there were issues with the bath and toilet. She re-decorated the entire Property, installed new blinds and a new electric cooker. The Applicant also laid new floor coverings in all the rooms. [APPELLANT] in the kitchen and bathroom, laminate flooring and new carpets in the living rooms and bedrooms. The landlord’s old carpets were taken up and placed in the outside shed. The Applicant stated that this was all agreed with the letting agent who also agreed that the Applicant could remove the laminate flooring if she moved to a new home.

18. The photographic evidence provided by the parties broadly supports the Applicant’s evidence. The photo’s described by the Respondent as showing the condition in 2019, show the kitchen to be in very poor condition and repair and the rest of [NAME], although serviceable, with quite dated fixtures and décor. The parties do not however agree about who did what. The Respondent claims that he provided a new

5 cooker before letting [NAME] to the Applicant (this is not born out by the photographs). He also claims that during the tenancy he installed new kitchen units, a new bathroom and replaced the lino in both rooms. The photographic evidence shows that some kitchen units and the toilet in the bathroom were replaced. The Applicant does not dispute that the landlord replaced the boiler, some kitchen units and the toilet but denies that he replaced any floor coverings or other bathroom fittings. There was no independent evidence corroborating the parties’ submissions concerning the lino flooring.

19. Issues concerning damp, mould and broken tiles in the kitchen and bathroom remained unresolved for some time despite some forthright text messages to the [NAME] in 2023. Matters came to a head in December 2023/January 2024 when the Applicant contacted the council about the condition of [NAME]. A letter was sent to the Respondent advising him of perceived hazards with a list of required works based on the Applicant’s allegations of disrepair. The works were carried out by the Respondent who said that the stress of managing [NAME] began to affect his existing health issues and he decided to sell it with vacant possession. These events brought about the eviction process in January 2024.

20. The Applicant was also suffering with significant health issues that she says were exacerbated by [NAME] conditions. She decided to move and eventually found somewhere affordable, which was available to rent from mid-April. She notified the letting agent and planned a phased move to the new home. Her plan was to begin moving her possessions on 15 April 2024 with a view to handing over the keys on 23 April 2024. The Applicant became concerned early on the 15th April because she saw the Respondent parked across the road. She messaged the agent to re affirm her plan for a phased move and asked him to remind the Respondent that she was not vacating until the 23rd. The Agent confirmed that her vacation dated had been relayed to the Respondent. Proof in the form of undisputed text messages was provided by the Applicant.

21. The Applicant moved the bulk of her furniture and possessions on 15 April 2024, leaving only her daughters clothing, some blinds, and a lampshade in the house which she proposed collecting at a later date together with some garden toys. The Applicant also intended to remove a dog fence she had erected within the garden and the laminate flooring before cleaning [NAME] and making good any items of damage caused by the removal of her fixtures and belongings. She relayed this to the agent and agreed that she should be done by the 20th of April when he could collect the keys.

22. However, when the Applicant returned on the 16 April 2025 with Mr [APPELLANT] she could not enter [NAME] because the locks had been changed. The Respondent came outside to speak with them. She explained that she just wanted to collect the rest of her belongings and take up the laminate flooring. The Respondent refused to allow them to enter. The Applicant

6 says she called the police. They came out but would not arrange for her to enter [NAME] because, in their words, it was a civil matter.

23. Over the next few days there followed numerous text messages exchanges between the Applicant, the Respondent and his [NAME] concerning the Applicant’s possessions and parcels delivered to [NAME] (which at the time remained the Applicant’s postal address). The Respondent denied that any possessions were in [NAME] when he entered or that he had interfered with her post. The Respondent retained the deposit to set against unpaid rent for April and alleged breaches of the tenant’s covenants in the tenancy agreement.

24. The Tribunal had little hesitation in rejecting the statutory defence. The Respondent may have held a genuine belief that the Applicant had moved out but that is insufficient. It is also necessary for the Respondent to establish that his belief was reasonable. The text exchanges with the letting agent could not have made the position clearer. The Applicant was quite plainly saying that she would be moving out over a period of days and would give vacant possession on 23 April 2024. She reinforced this with further messages on the morning of 15 April 2024 because she had seen the Respondent parked along the road while she was in the process of moving her furniture. The agent confirmed that he had explained the position to the Respondent, and yet later that same day the Respondent re-entered [NAME] and changed the locks.

25. We found the Applicant to be an honest witness who provided credible evidence. She provided a list of her possessions to the police and pressed the issue with the Respondent for several days after the eviction. The police arrested the Respondent on suspicion of theft but could find no evidence when they eventually searched [NAME]. These are the actions of a person pursuing a genuine grievance. It is simply not credible that the Applicant would risk criminal proceedings by making a false statement to the police about her possessions. On the Respondent’s evidence he asked the Applicant for a forwarding address to send on any remaining items. This is inconsistent with his claim that [NAME] had been completely cleared of all belongings.

For these reasons we were more persuaded by the Applicant’s evidence concerning her uncollected possessions.

26. A landlord seeking to determine a [NAME] tenancy by peaceable re- entry needs to be certain that his tenant has vacated. There was ample evidence in this case that she had not vacated. She had told the letting agent that she was not vacating until the 23rd of April. Her daughter’s clothes and garden toys had not been collected. The final clean up, inspection and hand over of keys arranged with the [NAME] for 20 April had not taken place. In short there was nothing to suggest that the Applicant had vacated [NAME] and would not be returning, and plenty to suggest that she would.

27. We are therefore satisfied beyond reasonable doubt that an offence under section 1(2) of the 1977 Act has been committed by the Respondent; that

7 is to say, on 15 April 2024 the Respondent as landlord unlawfully deprived the Applicant of her occupation of [NAME] by changing the locks without reasonable cause to believe that she had vacated [NAME].

28. In determining the amount of any rent repayment order, the Tribunal has regard to the stages set out in Acheampong v Roman [2022] UKUT 239 (LC), namely:

i. Ascertaining the whole of the rent for the relevant period;

ii. Subtracting any element of that sum that represents payment for utilities that only benefit the tenant;

iii. Considering seriousness of the proven offence, both compared to other types of offences for which an Order can be made and examples of the same type of offence. What proportion of the rent (after deductions as above) is a fair reflection of the seriousness of the offence? This is the starting point. It is also the default penalty in the absence of any other factors, but may be higher or lower in light of the final step;

iv. Considering deductions or additions in light of factors set out in Section 44(4) of the 2016 Act, namely conduct of landlord and tenant, financial circumstances of landlord and any previous convictions of the landlord in relation to offences set out in section 40.

29. The rent paid during the 12-month ending with the date of the offence (15 April 2024) is not in dispute. The rent due was 12 instalments of £700.00 totalling £8,400.00. The Applicant provided evidence of payment of 11 instalments of £700.00 rent for May 2023 to March 2024. There was no evidence of any payment for April 2024, which when put to the Applicant she did not dispute. Therefore, no rent was paid for the period 1 – 15 April 2024, totalling £345.15 (i.e. 15 x £23.01). The total rent paid to the Respondent for the relevant period was therefore £8,054.85.

30. The Applicant was in receipt of [NAME] throughout the 12-month period. Her housing contribution was £594.99 per month. The Applicant’s housing benefits for the relevant period of 11 months (£6,544.89) and 15 days @19.56 per day (£293.40) totals £6,838.29, which needs to be deducted from the total rent paid. The Tribunal finds that the maximum sum relevant to any rent repayment order is therefore £1,204.56.

31. In respect of the seriousness of the offence the Tribunal considers this to be one of the most serious of the section 41 offences and one which would generally justify an award of not less than 90%. Three further factors impinge on the award, and these are set out in Section 44(4) of 2016 Act: (a) the conduct of the landlord and the tenant, (b) the financial

8 circumstances of the landlord, and (c) whether the landlord has at any time been convicted of an offence to which this Chapter applies.

32. There is no evidence of any relevant conviction.

33. In respect of conduct the Applicant raises issues of disrepair that required the involvement of the council to remedy and the Respondent’s failure to allow her to collect her personal belongings. The Respondent criticises the Applicant’s conduct for failing to pay rent for a period during the Covid 19 pandemic and for leaving [NAME] unclean and in disrepair. This ignores the fact that the Applicant was prevented by the Respondent from carrying out the usual end of tenancy reinstatement and cleaning obligations by locking her out of [NAME].

34. There is evidence of disrepair. The letter from the council in January 2024 was issued without an inspection but not disputed by the Respondent who carried out the specified works. However, it is also not disputed that the Respondent did carry out repairs and improvements to the heating system the kitchen units and the sanitary ware in the bathroom. Conversely, he benefitted from the many improvements made by the Applicant in respect of flooring and decorations. The Applicant acknowledges that she missed one instalment of rent during Covid, but the position was complicated by the actions of the Respondent’s previous letting agent who had failed to protect the deposit, failed to pass on rent and used the deposit against one of the missed rent payments, seemingly without the Respondent’s knowledge or consent.

35. It was clear from the Respondent’s oral evidence that he did not fully understand the contractual relationship between himself and his [NAME] and that his dissatisfaction with his agent’s advice had led to a succession of different [NAME] during the tenancy. The Respondent appears at times to have relied on some very doubtful advice from his [NAME] which almost certainly added to the strained relationship that developed between the Applicant and Respondent. The conduct of the parties concerning the condition of [NAME] and a missed payment in 2020 is not however such as to warrant any enhancement or reduction to the order.

36. The Tribunal’s finding that the Applicant was deprived of some personal belongings including her daughters clothing is however conduct that justifies an increased order.

37. The Respondent put forward some evidence to demonstrate that he would find it difficult to pay any order other than by instalments. He provided further oral evidence at the hearing which the Tribunal considered. However, the documentary evidence lacked detail. The Tribunal could not be confident it had a sufficiently full picture of the Respondent’s financial position to allow it to consider any reduction based on the Respondent’s financial position.

9 38. The Tribunal determined that it should exercise its discretion to make a rent repayment order in this case. This is a serious offence that has been fully made out and there is insufficient evidence to conclude that the Respondent had any reasonable belief his actions were lawful. It was a serious, flagrant disregard by a landlord of his tenant’s rights of occupation and the order should reflect that. Based on the Tribunal’s findings the award shall be 95% of the maximum net rent for the relevant period, namely £1,204.56 x 95% = £1,144.33. This sum is payable by 5pm on 30 May 2025.

[NAME] Judge

RIGHTS OF APPEAL

1. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.

3. If the person wishing to appeal does not comply with the 28 day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.

10

Appendix 1

Housing and Planning Act 2016

Section 40

(1) This Chapter confers power on the First-tier Tribunal to make a rent repayment order where a landlord has committed an offence to which this Chapter applies. (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 [NAME] ... (3) A reference to “an offence to which this Chapter applies” is to an offence, of a description specified in the table, that is committed by a landlord in relation to housing in England let by that landlord.

General description of offence:

1) Criminal Law Act 1977 section 6(1) violence for securing entry 2) Protection from Eviction Act 1977 section 1(2), (3) or (3A) eviction or harassment of occupiers 3) Housing Act 2004 section 30(1) failure to comply with improvement notice

4) section 32(1) failure to comply with prohibition order etc

5) section 72(1) control or management of unlicensed HMO

6) section 95(1) control or management of an unlicensed house

7) This Act section 21 breach of banning order

Section 41

(1) [NAME] or a local housing authority may apply to the First-tier Tribunal for a rent repayment order against a person who has committed an offence to which this Chapter applies. (2) [NAME] may apply for a rent repayment order only if – (a) the offence relates to housing that, at the time of the offence, was let to the tenant, and (b)the offence was committed in the period of 12 months ending with the day on which the application is made.

Section 43

(1) The First-tier Tribunal may make a rent repayment order if satisfied, beyond reasonable doubt, that a landlord has committed an offence to which this Chapter applies (whether or not the landlord has been convicted). (2) A rent repayment order under this section may be made only on an application under 41. (3) The amount of a rent repayment order under this section is to be

11 determined in accordance with – (a) section 44 (where the application is made by [NAME]) …

Section 44

(1) Where the First-tier Tribunal decides to make a rent repayment order under section 43 in favour of [NAME], the amount is to be determined in accordance with this section.

(2) The amount must relate to rent paid during the period mentioned in the table.

If the order is made on the ground that the landlord has committed:  an offence mentioned in row 1 or 2 of the table in section 40(3) -the period of 12 months ending with the date of the offence  an offence mentioned in row 3, 4, 5, 6 or 7 of the table in section 40(3) -a period, not exceeding 12 months, during which the landlord was

committing the offence

(3) The amount that the landlord may be required to repay in respect of a period must not exceed

(a) the rent paid in respect of that period, less (b) any relevant award of [NAME] paid (to any person) in respect of rent under the tenancy during that period.

(4) In determining the amount the Tribunal must, in particular, take into Account

(a) the conduct of the landlord and the tenant,

(b) the financial circumstances of the landlord, and (c) whether the landlord has at any time been convicted of an offence to which this Chapter applies.

Appendix 2

Protection from Eviction Act 1977

Part 1 Unlawful Eviction and Harassment

1. Unlawful eviction and harassment of [NAME].

(1) In this section “[NAME]”, in relation to any premises, means a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the

12 right to remain in occupation or restricting the right of any other person to recover possession of the premises.

(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.