Rent repayment orders: have you waited too long?

The Upper Tribunal has handed down judgment in an important case about rent repayment orders: Moh and others v Rimal Properties Ltd [2024] UKUT 324 (LC)

Part 2, Housing Act 2004, makes provision for the licensing of certain HMOs. Controlling or managing an unlicensed HMO is a criminal offence (s.72(1)). Two particular defences are identified in the statute. First, there is a general defence of “reasonable excuse” (s.72(5)). Secondly, it is a defence to show that an application for a licence has been made to the local authority and the authority has not yet determined it (s.72(4)).

Where the First-Tier Tribunal (Property Chamber) is satisfied beyond reasonable doubt that a landlord has committed an offence under, inter alia, s.72, it may make a “rent repayment order” requiring the landlord to repay some or all of the rent to the tenant, to a maximum of 12 months rent (s.40, Housing and Planning Act 2016). Such an application may be made only where the “offence was committed in the period of 12 months ending with the day on which the application was made” (s.41(2)).

The appellants had been the tenants of the respondent in a property which required, but did not have, an HMO licence. On 4 May 2022, at 1.44pm, the respondent applied for an HMO licence. On 4 May 2023, at 3.56pm, the appellants applied for a rent repayment order. The FTT dismissed the application: the offence of managing an unlicensed HMO ceased once the respondent had applied for the licence; because the law disregards fractions of a day, that meant that the last day on which the offence occurred was 3 May 2022. The application was made more than 12 months after that date and so was not within the time specified for an RRO.

The Upper Tribunal dismissed an appeal. The defence under s.72(5) had arisen on 4 May 2022 and, because the law disregards parts of days, the defence was taken to be available for the whole of that day. That meant that the last day on which the offence was committed was 3 May 2022 and an application made on 4 May 2023 was outside the 12 month period permitted for an RRO application.

Justin Bates KC and Peter Sibley appeared pro bono on behalf of the tenants, instructed by JWM Solicitors (also acting pro bono). The judgment can be found here.