[2025] UKUT 175 (LC)

The appellant was one of three tenants of the ground floor and basement of 33 Betterton Street, London WC2H who signed a tenancy agreement on 19 July 2022 and moved into the property on 22 July 2022. The tenancy agreement stated that the tenancy began on 22 July 2022. The rent was £8,000 per month, and the tenants paid six months’ rent in advance on 20 July 2022; the agreement itself stated that this sum was payable on the date of signing the agreement. That was the only rent they ever paid; they moved out on 21 January 2023.

The three tenants, who were not related to each other, occupied their own rooms with shared facilities, and the property was therefore a house in multiple occupation as defined in the Housing Act 2004. The local housing authority had made an additional licensing designation which meant that an HMO with three or more occupiers in two or more separate households required a licence; and the house was not licensed. In February 2023 the tenants made an application to the FTT for a rent repayment order.

The FTT found that while the tenants were occupying the property the landlord was committing the offence of being a person managing or in control of an unlicensed HMO. I do not need to go into any more detail about that finding as there is no appeal from it. In principle therefore the FTT was prepared to make a rent repayment order; but it took the view that it could not make one because it could only order the repayment of rent that had been paid while the offence was being committed, on the authority of Kowalek v Hossanein Ltd [2021] UKUT 143 (LC). In order to explain that, we have to look in detail at the statutory provisions and then at the decision in Kowalek.