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.