In the case of Gurusinghe v Drumlin Ltd [2021], a 4 bedroom, self-contained flat within 3 storey converted house had been arranged as an HMO with 4 tenants who were unrelated occupying and paying rent for their rooms with shared cooking, toilet and washing facilities. The appropriate HMO licence was not held. In fact an application for an HMO licence was only made after the expiry of the 1 year tenancy which expired on 10 September 2019. The 4 tenants applied for rent repayment orders for the full period of 12 months ending on 10 September 2019.
It is an offence to have control of or manage an unlicensed HMO where there is an obligation to have an HMO licence under s72 of the Housing Act 2004. A rent repayment order can be made if an offence has been committed by a landlord controlling an unlicensed HMO.
The tenants believed that Cheshire House Developments Limited ("Cheshire") had control of the flat and Mr Bolt was the sole shareholder and director of Cheshire. They therefore asked for the rent repayment order to be made against both Cheshire and Mr Bolt. Cheshire and Mr Bolt applied to strike out the application for a rent repayment order on the basis that neither of them was the landlord of the flat. The registered proprietor of the long leasehold to the flat was Drumlin Limited. It seems that the tenants were aware of this. The tenants therefore applied on 1 December 2020 for Drumlin Limited to be substituted for Cheshire. The First Tier Tribunal determined that it had no jurisdiction to add Drumlin Limited as respondent to the application for the rent repayment order because the 12 month limitation period (under s41(2)(b) of the Housing and Planning Act 2016) had expired. That 12 month limitation period ran from the termination of the tenancy which in this case had been 10 September 2019 and so it ran out on 10 September 2020.
The First Tier Tribunal determination was appealed by the tenants and the Upper Tribunal (Lands Chamber) dismissed the appeal. The First Tier Tribunal or the Upper Tribunal on appeal does not have the power to add or substitute a new respondent to an application for a rent repayment order after the expiry of the 12 months' limitation period.
Incidentally, Drumlin Limited has been added to a second application relating to the same flat made by 4 applicants (1 of whom was an applicant in the first application) but as the rent repayment orders in respect of the second application are for a period from 10 September 2019 to 5 February 2020, there is no limitation issue for the landlord being added.
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