The Problem
Although most landlords are good landlords and behave responsibly, it cannot be denied that there are still many bad and even criminal landlords.
The problem is – how can tenants deal with this? Generally, tenants suffering from this behaviour tenant to be poor and unable to fund legal claims.
It is in the interest of everyone, including all good landlords, whose good name is affected by association with these bad landlords, that they are dealt with.
The problem is likely to be exacerbated by new rules, which are actually designed to deter ‘ambulance chaser’ personal injury claims, due to come into force next year. These will limit recoverable costs in successful claims for damaged of under £100,000 to ‘fixed costs’.
As housing work is complex and therefore inevitably expensive, this will mean it will be uneconomic for most solicitors to take on this type of claim. As the fixed costs fall far, far short of the actual cost of bringing this type of claim.
An excellent article in the Observer warns that this will leave many tenants without a remedy – for example for illegal eviction, harassment and dangerous living conditions.
The article cited campaigners warning that there is no point in giving tenants new rights (for example in the new Renters Reform Bill) if the legal support they need to exercise their rights is taken away.
However, there is an answer. Rent Repayment Orders.
About Rent Repayment Orders
These were brought in originally in 2004, but were extended in the 2016 Housing and Planning Act. The relevant offences are now:
- using or threatening violence for securing entry into premises, under s.6 Criminal Law Act 1977
- illegal eviction or harassment, under s.1 Protection from Eviction Act 1977
- failure to comply with an improvement notice, under s.30 Housing Act 2004
- failure to comply with a prohibition order, under s.32 Housing Act 2004
- (from 6 April 2018) breach of banning order, under s.21 Housing and Planning Act 2016
- having control of, or managing, an unlicensed property, under s.95 Housing Act 2004
- having control of, or managing, an unlicensed house in multiple occupation (HMO), under s.72 Housing Act 2004
A Rent Repayment Order can be made for up to 12 months rent (assuming it has been paid – they are after all rent repayment orders) so long as the applicant is able to prove that the landlord is guilty of the relevant offence.
They are most commonly used against landlords who fail to obtain an HMO license for licensable properties and in recent years the number of claim to the Tribunal have increased, as have the cases which consider how the rules apply.
For example, recent cases have provided that:
- The starting point for the award is the full rent, not the landlord’s profit (Vadamalay v. Stewart)
- Tenant behaviour can reduce the amount awarded – for example if the tenant is in arrears of rent or has refused to allow inspections (Awad v. Hooley)
- In some circumstances, landlords have a defence of ‘reasonable excuse’ for example if the Local Authority had promised to notify an ex-pat landlord but failed to do so (D’Costa v. D’Andrea)
- But a landlord cannot use the ‘reasonable excuse’ defence if their agents had failed to advise them of the need for an HMO license (Aytan v. Moore).
- Finally, the case of Rakusen v. Jepson held that rent repayment orders cannot be made against a superior landlord (for example in a ‘rent to rent’ situation) but this case is due to be appealed to the Supreme Court next year.
These are just a few of the myriad cases coming through the courts.
So maybe tenants should start using them for more than HMO license situations.
Eviction or harassment claims
In particular, tenants should consider the Rent Repayment option if they have been unlawfully evicted or harassed by their landlords.
To do this, however, if the landlord has not been successfully prosecuted (which few will) you will need to prove your case. So make sure you keep evidence of the landlord’s behaviour, eg
- Take photographs and videos where appropriate
- Keep a diary of events, and
- Get others who witness or are aware of the landlord’s behaviour to support you by giving statements
There is quite a lot of guidance on the internet, for example in my Renters Guide site there is a video interview with housing barrister Brooke Lyne here and there is a useful guidance page on the Shelter website here.
Future changes
Finally, I am sure I have read somewhere that the government are likely to extend the rent repayment order system to cover situations where properties are in serious disrepair.
This might make it easier for tenants to claim for this situation in circumstances where disrepair claims (which tend to be complex and expensive to bring) are becoming almost impossible in the regular courts.
The legislation also allows your Local Authority to assist in the preparation of your application.
Housing and Planning Act 2016
49 Helping tenants apply for rent repayment orders
(1) A local housing authority in England may help a tenant to apply for a rent repayment order.
(2) A local housing authority may, for example, help the tenant to apply by conducting proceedings or
by giving advice to the tenant.
Also, you can only claim rent you have paid, not rent that has been paid for by UC or HB, the Local Authority should be claiming that.
The RRO is best suited to the typical licensing case because it is something which can be proven largely on the documents. A landlord either had a licence (or a pending application for one) or they didn’t. It is straightforward for the applicant to show that they were a tenant, that they paid rent, that the applicant required a licence and that they didn’t have one. Argument is more likely to be around ancillary points such as the amount of the order. The cases are fairly straightforward and the outcomes predictable (although less so since the UT walked back on the idea that the maximum award should be made by default). As representation in the FtT can be by non-lawyers, various organisations have set up (and with great success) offering to assist with these sorts of claims on fixed fee or damage based arrangements.
Illegal eviction and harassment cases are rather different. As the offence must be proven on the criminal standard, the evidence must be watertight (the tenant must effectively present the case that the CPS would have presented to obtain a conviction, except without the help of the police). Significant work is likely to be required on compiling witness and other evidence and it may be necessary to establish key parts of the case through cross-examination of the respondent landlord – no small ask of an unrepresented tenant. As the time investment is much less predictable, fixed costs and DBA based arrangements are unlikely to be as viable. The uncertainty and grave nature of the charge makes it less likely that the landlord will settle, particularly as there are no costs consequences for refusing to do so.
There are also inherent problems with the RRO as a remedy as compared to court in these cases. An RRO is useless to a tenant who has been paying rent through benefit, as no recovery will be made for any rent paid by UC or HB. The financial award is also wholly arbitrary as it is calculated based on the last years rent – a tenant illegally evicted by a landlord in London will receive perhaps four times the award as a tenant illegally evicted in the same circumstances in the North East. Whether the tenant would do better on a civil claim or RRO may come down to nothing other than geography.
I think RROs should be seriously considered in suitable cases but I think there is a reason why they have largely remained confined to HMO (and selective) licensing cases.