Global 100 Limited v Carlos Jimenez

For the sole-use condition in section 254(2)(d) of the Housing Act 2004, the relevant question is the actual use of the living accommodation, rather than the contractual purposes attributed to its occupiers. Property guardians who reside in shared accommodation, remain present and report damage or unauthorised access do not thereby make a second use of that accommodation. Those functions are consequences or by-products of residential occupation.

The condition concerns genuinely different concurrent uses of living accommodation. It is not defeated because the same residential occupation also serves the building owner's commercial objective of protecting a vacant building. The statutory scheme should not be construed narrowly so as to deprive shared residents of housing-standard protection.

The appellant placed property guardians in a former five-storey office building. The respondents occupied shared, non-self-contained accommodation under temporary licence agreements. They paid weekly fees, were required to sleep there regularly, keep the building occupied and report damage or unauthorised access.

The First-tier Tribunal (Property Chamber) held that the building was an HMO requiring a licence under Part 2 of the Housing Act 2004. As it was unlicensed, it made rent repayment orders totalling £6,251.85 in favour of the respondents.

The appellant appealed on the sole question whether the sole-use condition in section 254(2)(d) was met. It contended that the guardians' occupation also provided property-guardian services and therefore was not the accommodation's only use.

1. Appeal dismissed. The Upper Tribunal confirmed the First-tier Tribunal's rent repayment orders.

2. The requirements in section 254(2) of the Housing Act 2004 are cumulative. The only disputed requirement was section 254(2)(d): whether the guardians' occupation of the living accommodation constituted its only use. Section 260 required that condition to be presumed satisfied unless the appellant proved the contrary.

3. The appellant's attempt to equate use with contractual purpose was rejected. The inquiry concerns the use actually made of the living accommodation, not the legal character of the occupiers' agreements or the commercial purposes of the guardian company and building owner. The rateability and tenancy issues considered in London Borough of Southwark v Ludgate House Ltd [2020] EWCA Civ 1637 and Global 100 Ltd v Laleva [2021] EWCA Civ 1835 arose in materially different statutory contexts.

4. The licence agreement allowed the respondents to use the accommodation only as their main residence. Their obligations to remain in the building, report risks or unauthorised access, and secure it when empty did not amount to a different use of the accommodation. The deterrent effect of their presence was a consequence of their residential occupation, not a concurrent non-residential use.

5. The sole-use condition is concerned with different concurrent uses of living accommodation. It could potentially be unsatisfied where, for example, accommodation is used both as residents' homes and by a landlord for bed-and-breakfast accommodation. It is not unsatisfied where the same persons' only or main residential occupation also serves a distinct commercial purpose. That construction accords with the protective purpose of Part 2 and the statutory presumption in section 260.

• Upper Tribunal (Lands Chamber): dismissed the appeal and confirmed the rent repayment orders: [2022] UKUT 50 (LC).
• First-tier Tribunal (Property Chamber): on 6 July 2021 held that the building was an unlicensed HMO and made rent repayment orders totalling £6,251.85. Permission to appeal was initially refused but was granted by the Upper Tribunal.