Şenay Nihat
Partner
Barrister
Article
6
In Rakusen (Respondent) v Jepsen and others (Appellants) [2023] UKSC 9, the Supreme Court has found that Rent Repayment Orders ("RROs") can only be made against immediate landlords. This departs from tribunal decisions which found that an RRO could be made against a superior landlord as well as an immediate landlord.
This case was followed with interest by landlords using the rent-to-rent model, with the National Residential Landlords Association getting permission to put in written submissions. The court was clear that, notwithstanding its judgment, there were still plenty of ways to ensure that superior landlords could be held to account if hiding behind shell companies in rent-to-rent schemes which treated residential tenants poorly. If necessary, Parliament could legislate further to address superior landlords directly.
Mr Rakusen and Ms Field, the long leaseholders of a flat in Finchley Road, London, granted a tenancy to 'Kensington Property Investment Group Ltd ("KPIG"). The tenancy was for a term of 36 months less a day, and gave KPIG the ability to "sublet each unit individually or the whole as part of the day to day management of their business". In turn, KPIG let the individual rooms in the flat to the appellants via individual licence agreements. This amounted to an HMO, and an HMO licence should have been sought from the local authority. No licence was ever granted.
The appellants sought an RRO against both their immediate landlord, KPIG, and the long leaseholders of the flat, on the grounds that the HMO did not have the required licence. They argued that both the long leaseholder and KPIG were landlords "under a tenancy of housing", so were both liable.
The Upper Tribunal also agreed with this interpretation of the 2016 Act, noting that a superior landlord could also commit the offences for which RROs could be made. If RROs could only be made against the immediate landlord, this penalty could be easy to avoid by granting a short-term tenancy to an insubstantial intermediary which would then sub-let.
However, the Court of Appeal departed from the tribunal's view, finding that the language used in Section 40(2) connoted a direct relationship of landlord and tenant. This did not catch superior landlords. The case proceeded to the Supreme Court.
The Supreme Court agreed with the Court of Appeal. A straightforward interpretation of the words in the 2016 Act was needed, using ordinary and generally understood meanings. On that basis, "landlord under a tenancy of housing" plainly indicated the immediate landlord only. Therefore:
To discuss any of the points raised in this article, please contact real estate litigators Martin Thomas or Senay Nihat.
CECI NE CONSTITUE PAS UN AVIS JURIDIQUE. L'information qui est présentée dans le site Web sous quelque forme que ce soit est fournie à titre informatif uniquement. Elle ne constitue pas un avis juridique et ne devrait pas être interprétée comme tel. Aucun utilisateur ne devrait prendre ou négliger de prendre des décisions en se fiant uniquement à ces renseignements, ni ignorer les conseils juridiques d'un professionnel ou tarder à consulter un professionnel sur la base de ce qu'il a lu dans ce site Web. Les professionnels de Gowling WLG seront heureux de discuter avec l'utilisateur des différentes options possibles concernant certaines questions juridiques précises.