Marek And Kahori Kowalek v Hassanein Limited
Decision date: 18 June 2021
Neutral citation: [2021] UKUT 143 (LC)
Overall AI summary confidence: high
Short overview
This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.
AI confidence in this short overview: high
This appeal concerned an FTT rent repayment order after a landlord let a flat without a required selective licence. The Upper Tribunal held that only sums both paid during the offending period and paid in respect of that period are recoverable, excluded a post-licence £2,000 payment, ruled that a held tenancy deposit is not "rent" while retained as a deposit, and confirmed tenant arrears are relevant conduct under s.44(4)(a) for reducing an order. The FTT's repayment order was upheld in substance and the appeal dismissed.
Ratio decidendi
This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.
AI confidence in this ratio decidendi summary: high
A payment is recoverable under s.44(2) only if it was (a) paid during the period when the landlord was committing the offence and (b) paid in respect of that offending period; a deposit only counts as "rent" for these purposes if it has been released from deposit status and actually offset against rent (bringing it within s.52(2)); and a tenant's unexplained non‑payment of rent and accumulation of arrears fall within "conduct" under s.44(4)(a) and may be taken into account in reducing a rent repayment order.
Obiter dicta
This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.
AI confidence in this obiter dicta summary: medium
The tribunal noted (obiter) that a licence application may need to be "duly made" for the offending period to end (relevant where fees are unpaid), that on ordinary contractual principles appropriation of a payment to a period is initially the payer's choice with the recipient able to appropriate in certain circumstances, and that detailed questions about apportionment and when a deposit becomes treatable as rent were not decided for want of argument.