Margaret Florence Cabo v Karen Tamie Dezotti

For a rent repayment order, the relevant landlord is the landlord under the tenancy generating the rent. An owner may be that landlord where an agent contracted in its own name but acted with actual authority and intended to act for the owner. The contract and surrounding circumstances may exclude an undisclosed principal, but that requires an express or implied indication that the principal cannot sue or be sued. Describing the agent as “Licensor” is insufficient by itself. A person without a proprietary interest may still grant a contractual tenancy. An owner established as the immediate landlord is not merely a superior landlord and may be liable under the Housing and Planning Act 2016.

Margaret Cabo owned a six-bedroom property which Top Holdings Limited, a company controlled by her husband, managed under a written agreement. Karen Dezotti occupied a room under an agreement made by Top Holdings. The First-tier Tribunal found that the property was an unlicensed mandatory HMO and made a rent repayment order of £9,600 against Ms Cabo.

The Upper Tribunal dismissed Ms Cabo’s appeal. It held that she was a person managing the property and an undisclosed principal whose agent had created the relevant landlord and tenant relationship: [2022] UKUT 240 (LC). The central issue before the Court of Appeal was whether Ms Cabo was the landlord under the tenancy for the purposes of the rent repayment order provisions.

1. Disposition. The Court of Appeal unanimously dismissed the appeal.
2. Statutory context. The relevant rent repayment order provisions in the Housing and Planning Act 2016 concern the landlord under the tenancy generating the rent. The Upper Tribunal correctly upheld the alternative finding that Ms Cabo was a person managing the HMO under section 263(3)(b) of the Housing Act 2004. The Supreme Court’s decision in Jepsen v Rakusen [2023] UKSC 9 established that an order cannot be made against a superior landlord, but that did not prevent an owner from being the immediate landlord.
3. Authority and intention. The evidence justified proceeding on the basis that Top Holdings had actual authority to enter into the occupation agreement. Ms Cabo had not argued before the FTT that Top Holdings exceeded its authority, had not disavowed the agreements, and had not relied on lack of authority as a reasonable-excuse defence. The management agreement also showed that Top Holdings intended to act on her behalf.
4. Exclusion of the principal. Under Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199, contractual terms or surrounding circumstances may exclude an undisclosed principal’s right to sue or liability to be sued. The principle stated in Teheran-Europe Co Ltd v S. T. Belton (Tractors) Ltd [1968] 2 QB 545 supported the ordinary assumption that such involvement is permitted unless exclusion is shown. The older authorities, including Humble v Hunter (1848) 12 QB 310 and Formby Brothers v Formby (1910) 102 LT 116, did not require a different conclusion.
5. Landlord status. The description of Top Holdings as “Licensor” did not itself exclude Ms Cabo. The reasoning in Epps v Rothnie [1945] KB 562 was closely analogous. Bruton v London & Quadrant Housing Trust [2000] 1 AC 406 confirmed that a person without a proprietary interest can grant a tenancy and be a contractual landlord. Ms Cabo was therefore an undisclosed principal and the landlord under the tenancy for the purposes of the 2016 Act.

1. Court of Appeal (Civil Division). Appeal dismissed. The Court upheld the conclusion that Ms Cabo was the undisclosed principal and landlord under the tenancy.
2. Upper Tribunal (Lands Chamber). Appeal from the First-tier Tribunal dismissed in the decision reported at [2022] UKUT 240 (LC). The Deputy President held that Ms Cabo was a person managing the property and an undisclosed principal.
3. First-tier Tribunal. Found that the property was a mandatory HMO requiring a licence and made a rent repayment order of £9,600 against Ms Cabo.