Edouard Cussinel & Anor v Alan Guerin & Ors

A rent repayment order under section 40(2) of the Housing and Planning Act 2016 may be made only against the tenant’s immediate landlord. A superior landlord is not liable merely because it has control of, or responsibilities concerning, the property.

On an appeal, the Ladd v Marshall considerations govern the admission of fresh evidence. Evidence should be refused where, although credible, it could not probably have had an important influence on the result. Under section 18(1) of the Housing Act 1988, an assured sub-tenancy continues only when the intermediate superior tenancy ends. Dissolution of a corporate intermediate tenant does not end its leasehold tenancy: it vests as bona vacantia under section 1012 of the Companies Act 2006.

The appellants had granted a five-year tenancy of their former home to a company, which then let rooms to the respondents. The First-tier Tribunal held that the property was an unlicensed house in multiple occupation and made rent repayment orders against the appellants as superior landlords.

The appeal was stayed pending Rakusen v Jepsen & Ors [2023] UKSC 9. Following that decision, the respondents sought to resist the appeal by contending that they were in fact the appellants’ direct tenants. They applied to rely on fresh Companies House material showing that the intermediate company had been dissolved in January 2017.

The issue was whether the fresh evidence could establish that dissolution ended the intermediate tenancy and caused section 18 of the Housing Act 1988 to create direct tenancies with the appellants.

1. The application to admit fresh evidence was refused. The Tribunal applied the three principal Ladd v Marshall considerations, which also govern appeals to the Upper Tribunal. Although the evidence was credible, and the tenants were not to be criticised for failing to investigate the company’s status earlier, it could not probably have had an important influence on the First-tier Tribunal’s decision.

2. Section 18(1) of the Housing Act 1988 protects an assured sub-tenancy only where the intermediate tenant’s superior tenancy comes to an end. The tenancy granted by the appellants to the company was valid, although it could not be an assured shorthold tenancy because the tenant was a company rather than an individual.

3. The company’s dissolution did not end its tenancy. Under section 1012 of the Companies Act 2006, its leasehold property vested as bona vacantia. Since the intermediate tenancy continued, section 18 did not create a direct landlord-and-tenant relationship between the respondents and the appellants.

4. Accordingly, the fresh evidence could not establish that the appellants were the respondents’ landlords for section 40(2) of the Housing and Planning Act 2016. Consistently with Rakusen v Jepsen & Ors [2023] UKSC 9, the First-tier Tribunal had no power to make rent repayment orders against superior landlords. Subject to any representations within 14 days, the Tribunal indicated that it would dismiss the tenants’ late challenge to the finding of no agency, allow the appeal, set aside the First-tier Tribunal’s decision of 14 June 2021, and dismiss the rent repayment order applications.

• Upper Tribunal (Lands Chamber): refused the tenants’ application to adduce fresh evidence on the appellants’ appeal.
• First-tier Tribunal (Property Chamber): on 14 June 2021 made rent repayment orders against the appellants as superior landlords. The present appeal was stayed pending Rakusen v Jepsen & Ors [2023] UKSC 9.