Martin Marcus v Dino Kwok

Under the Housing and Planning Act 2016, a rent repayment order may require repayment only of rent paid by the tenant who applies. A sole joint tenant cannot recover rent paid by a co-tenant who has not applied.

Where the sum claimed is properly understood as the applicant’s own share of rent over the relevant period, the First-tier Tribunal may make an order for that sum. An appellate tribunal will not entertain a new factual challenge to the finding of who paid the rent when it was not advanced below.

The appellant landlord let an unlicensed flat to the respondent and the respondent’s cousin as joint tenants. The respondent applied alone for a rent repayment order. The First-tier Tribunal (Property Chamber), by a decision of 30 May 2023, found that the landlord had committed the licensing offence and ordered repayment of £3,025.

The landlord appealed, contending that the order included rent paid by the respondent’s cousin, who had not applied. The issue was whether the order exceeded the Tribunal’s power under sections 40, 41 and 44 of the Housing and Planning Act 2016.

1. Appeal dismissed. A rent repayment order under section 40(2) of the Housing and Planning Act 2016 requires the landlord to repay rent paid by the tenant. Read with sections 41(1) and 44(2), it permits recovery only of rent paid by the tenant making the application. Thus, one joint tenant applying alone cannot recover rent paid by the other joint tenant.

2. That rule did not invalidate the First-tier Tribunal’s order. Although the respondent and his cousin had each contributed half the rent, the respondent claimed £5,550, being half of the maximum rent recoverable for the relevant 12-month period. On the evidence and the respondent’s explanation, that sum was properly understood as the rent he had paid himself, rather than all rent for six months.

3. The First-tier Tribunal knew that both joint tenants had contributed equally. There was no reason to suppose that it had awarded the respondent rent paid by his cousin. Its assessment of 55 per cent of the sum claimed, producing £3,025, was therefore within its power.

4. Invoices produced only after the appeal materials had been filed could not found a new factual contention that the cousin alone had paid the rent. The First-tier Tribunal had found that the respondent paid half, and it was too late to challenge that finding on appeal. The cousin could not be added as a party at that stage, and his joinder was unnecessary to preserve the existing order.

• Upper Tribunal (Lands Chamber): dismissed the landlord’s appeal in [2024] UKUT 219 (LC), holding that the First-tier Tribunal’s order repaid only rent paid by the sole applicant.
• First-tier Tribunal (Property Chamber): on 30 May 2023, found that the landlord had committed the unlicensed-house offence and ordered repayment of £3,025.