Rent Repayment Orders revisited

277

Rent Repayment Orders revisited – What can constitute harassment of a tenant?

Author: Richard Pulford

Associate Solicitor (Dispute resolution), Boyes Turner

We previously covered the topic of Rent Repayment Orders (RRO) mainly in the context of failure to properly license a HMO (see ‘An introduction to RROs‘ ). This time we have example of one of the other offenses capable of an RRO via the Housing and Planning Act – Illegal eviction or harassment of the occupiers of a property under section 1 of the Protection from Eviction Act 1977. The tribunal decision from 36 Copenhagen Court, 32 New Street, Basingstoke, Hampshire, RG21 7DT: CHI/24UB/HMB/2022/0001 covers a number of everyday activities that are common for landlords and letting agents to deal with and how it can go wrong when they are not understood and followed correctly.

The Case:

This case came about following accusations by the tenant that the landlord had harassed him and as such was in breach of s1 of the Protection from Eviction Act 1977 by amongst other things:

Sending regular rental demands (sometimes just days apart) requiring payment of 6 months’ rent upfront as had been originally paid by the tenant despite the lease confirming that after the expiry of the fixed term the tenancy would continue on a month by month basis.

After having served a section 21 notice seeking possession of the property, the letting agent had tried to arrange access to the property to carry out viewings to prospective new tenants. After the tenant had refused on the basis that they had no intention of leaving, the agent had insisted that they were going to show up anyway and subsequently used an opportunity when the tenant was not in to use their keys to gain access despite having been told that they did not have permission.

Written to the tenant advising of adverse credit reporting if he did not leave before court action was required.

It is worth noting with claims like this that the relevant standard of proof is the criminal standard. The Tribunal must be satisfied beyond reasonable doubt, that is to say the Tribunal must be sure, that a landlord has committed the offence. This would not be a balance of probability type burden of proof used in civil cases. The landlord via their managing agent responded:

That the rental should be payable 6 monthly and it was only going to be switched to monthly if the tenant had passed referencing or found a guarantor.

That the contract allowed for access to the property to carry out viewings

That the tenancy agreement ends following the expiry of section 21 notices

That is common practice for an inventory clerks to attend the property on the assumption that the tenant will leave.

The Tribunal’s findings:

The tribunal gave the landlord little credit for these arguments. Firstly the lease was clear that the tenancy would continue on a month by month basis and the tenant had been paying at the required rate, monthly. Secondly, whilst there is a provision allowing the landlord access to the property for viewings, there had been an express refusal from the tenant. Any such pressure on the tenant after this would be likely to cause distress. Finally the argument that the lease comes to an end after the expiry of the notice got the response we would expect:

‘The Respondent, via their letting agent, claimed that the tenancy ended on the 18 December 2021, that being the date recorded within the s.21 Notice of Possession. The Tribunal disagrees. The assured shorthold tenancy does not end until the tenant either gives up possession or a warrant is executed following a court order. The Tribunal therefore finds that Mr. Stamp’s right to occupy the premises as a residence and his right to remain in occupation continued as at the date of application.’

The Tribunal awarded £3300 being the maximum amount possible, the full rental for the period of the offense to the tenant and found that the following actions had constituted a breach:

a. Refusal to accept the assured shorthold tenancy continued on a periodic basis;

b. Issuing of a six-monthly rental invoice for the period commencing 19 July 2021;

c. Advertising the property on an assumption of vacant possession on 18 December 2021;

d. Arranging multiple viewings without the tenant’s consent of entry;

e. Entering the property without permission on 23 October 2021;

f. Attendance of an inventory clerk 18 December 2021;

g. Email from Mr. Jewell to the tenant 20 December 2021 advising of long- term consequences of failing to give up possession.

Conclusion:

This case highlights the need for letting agents and landlords to fully understand the remit that they have and actions they are lawfully able to take. Many landlords and agents may look at the facts of the case and say that these are things that landlords should be able to do or that the breaches are not too bad or fall under the heading of ‘general practice’. However, any errors or misunderstandings are not going to be accepted, particularly when there is a managing agent involved who ultimately should know better.

The key takeaways are to make sure your agreement reflects the agreement that you want to make. If you want the rent to be payable 6 monthly in advance and only changing following up to date referencing etc. then make sure the lease reflects this. Make sure all staff members are all adequately trained and know what they should or should not be doing. Blaming a breach on the work of a junior staff member will not constitute a defence as this case illustrates. Finally, treat tenancies on a case by case basis. If you know that a tenant is not going to leave, do not treat the end of tenancy procedure the same as a tenant who has already booked their moving vans.

When giving comment and advice on a non-specific basis, Boyes Turner cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems it is recommended that professional advice be sought.

About Boyes Turner

Boyes Turner are a regional UK law firm with an impressive international reach. The expertise of their teams is considerable, spanning the corporate world, technology and private clients. Richard Pulford is an Associate in the firm’s Property Disputes team with over 10 years of experience in property law. He advises on all elements of residential and commercial property matters. (rpulford@boyesturner.com)

* * *