Kimberley Ruth Sing Tze Moh & Ors v Rimal Properties Limited

For the purposes of a rent repayment order, Housing and Planning Act 2016, section 41(2)(b), requires the offence to have been committed within the whole-day period of 12 months ending on the application date. It does not apply the corresponding-date rule associated with periods before or after an event.

Where an HMO landlord acquires a statutory defence during a day, fractions of a day are disregarded. The defence operates for the whole of that day. Any ambiguity concerning criminal liability should be resolved in favour of the potential offender.

These were two appeals from decisions of the First-tier Tribunal (Property Chamber), which had held that it lacked jurisdiction to make rent repayment orders because the tenants’ applications were out of time.

In the Jerome House appeal, the landlord applied for an HMO licence on 4 May 2022 and the tenants applied for a rent repayment order on 4 May 2023. In the Reighton Road appeal, the landlord acquired a reasonable-excuse defence on 16 November 2022 and the tenants applied on 15 November 2023.

The appeals raised the meaning of “the period of 12 months ending with the day on which the application is made” and the date on which a defence to the offence under section 72(1) of the Housing Act 2004 takes effect.

1. Appeals dismissed. The First-tier Tribunal correctly concluded that it had no jurisdiction to make a rent repayment order in either appeal.

2. Section 41(2)(b) of the Housing and Planning Act 2016 refers to a period of 12 months ending with the application date. In ordinary language, both the start and end dates fall within that period. The period in the Jerome House appeal therefore began at the first moment of 5 May 2022 and ended on 4 May 2023.

3. The corresponding-date rule in Dodds v Walker [1981] 1 WLR 1027, derived from Lester v Garland 33 ER 748, applies to periods reckoned before or after a specified event. It does not determine the meaning of the materially different statutory phrase “ending with the day”. Nor did the limitation-period authorities justify a more generous construction for tenants.

4. The offence under section 72(1) of the Housing Act 2004 is a continuing offence. However, the authorities establishing that proposition did not decide when a defence arising during a day takes effect.

5. Fractions of a day should be disregarded when determining the operation of a defence under section 72(4) or section 72(5). The reference to “the material time” concerns the date, rather than a particular time of day. This approach avoids difficult and sometimes impossible factual inquiries into the precise moment when a reasonable-excuse or licence-application defence arose.

6. The defence operates for the whole day on which the relevant facts arise. In a criminal context, where the choice is between treating the landlord as committing an offence during the remainder of that day or treating the landlord as having a defence throughout it, the latter construction is preferred. The last offence date was therefore 3 May 2022 in the Jerome House appeal and 15 November 2022 in the Reighton Road appeal.

• First-tier Tribunal (Property Chamber): held in references LON/OOBK/HMF/2023/0113 and LON/00AM/HMF/2023/0323 that it had no jurisdiction to make rent repayment orders because the applications were out of time.
• Upper Tribunal (Lands Chamber): dismissed both appeals and upheld the FTT’s conclusions.