Navigating Joint Tenancies and Rent Repayment Orders

122 Widdenham Road, London N7 9SQ (LON/00AU/HMF/2025/0753) concerned an application for a Rent Repayment Order (RRO) brought by several tenants against their landlord for failing to licence their HMO. In an earlier decision, the Tribunal had already determined that the offence was made out and that the appropriate repayment would be 40% of the rent paid. So far, so simple.

The complexity arose when the Tribunal flagged that the tenancy was a joint tenancy and that not all of the tenants were parties to this claim (and, indeed, the identities of some of the Defendants had changed over this period).

The Tribunal therefore sought submissions on whether all tenants must be parties to the application. By this time, the 12‑month statutory limitation period had expired, meaning the remaining joint tenants could not be added to the proceedings.

The decision

The Tribunal considered Marcus v Kwok [2024] UKUT 219 (LC), where one joint tenant recovered the rent they had paid. However, the Tribunal noted that the question of whether the other joint tenant was required to be a party to the application was not addressed. The Tribunal also considered Opara v Olasemo [2020] UKUT 96 (LC). There, the question was whether the HMO offence was made out. The FTT found that other ‘tenants’, who were not applicants and were not called to give evidence, did not occupy the property as their only or main home. The Upper Tribunal overturned this finding, saying there was sufficient evidence to be satisfied that this requirement was met beyond reasonable doubt. Again, the question of whether all tenants needed to be applicants was not raised.

The Tribunal in 122 Widdenahm Road therefore found they were not bound by authority on this point. They held that an RRO is a civil remedy and drew from CPR Pt.19 to hold that all parties entitled to a civil remedy need to be a party to proceedings. The Tribunal therefore held that it did not have jurisdiction to make an RRO and dismissed the claim.

Comment

If correct, this decision represents a significant procedural bar to RRO applications in the case of joint tenancies. It can often be difficult for all tenants to agree to bring an application, particularly where some, or all, tenants have left the property. Many such cases may involve the most vulnerable tenants, for instance, those on housing benefits renting, as described in Opara, “cheap rooms”. Given the upcoming doubling of the maximum rent repayment in the Renters’ Rights Act 2025, the sums of money at play are going to be more significant.

The decision also apparently stands at odds with Upper Tribunal authority. Whilst it is correct that the authorities cited did not directly address this issue, this latest decision seems hard to square with the consistent rulings from the Upper Tribunal that a tenant can only recover the rent they themselves paid. Indeed, in Moreira & Ors v Morrison & Anor [2023] UKUT 233 (LC), 3 of 5 joint tenants attempted to recover the full amount of the rent on the basis that they were jointly and severally liable to have paid the full amount. This was rejected, and their recovery was limited to the rent that they had in fact paid.

With respect to the Tribunal in the 122 Widdenham Road case, this line of caselaw appears to contradict its reasoning at [15], as the claim was not for repayment of joint payment by the tenants, but a claim for repayment of the rent paid by each individual applicant to proceedings. It is for the tenants to prove the amount of rent that they paid in a given case.

Landlords will, quite fairly, point to the risk of having to face multiple claims for the same property and inconsistent decisions. However, both concerns appear to be resolvable within the existing framework. Applicants must prove the rent they paid, the landlord will be a party to all claims, and Tribunal decisions are all published, meaning the risk of inconsistent decisions (and therefore landlords having to pay more than the rent actually paid) should be minimal. Likewise, if tenants bring separate applications at the same time, these can be case-managed as a single claim by the Tribunal (r.6(3)(b) of the Tribunal Rules). If brought at different times, the previous decisions being available would hopefully result in subsequent claims being easy to resolve quickly.

It is understood that an appeal is likely. Given the tension between this decision and earlier UKUT decisions, and the increasing importance of RROs under the Renters Rights Act, clarity is certainly required. In the meantime, tenants would be well advised to ensure all joint tenants are parties to an application, particularly when the 12-month limitation period may soon expire.

Article written by Philip Marriot