Case No L00LU497 |
Neutral Citation [2025] EWCC 74 |
Luton Justice Centre
Floors 4 & 5
Arndale House
The Mall
Luton
LU1 2EN
Before :
DISTRICT JUDGE HAYES
Between :
REGENCY PROPERTY MANAGEMENT (UK) LIMITED | Claimant |
- and - | |
(1) MAREK LECH ALEKSANDROWICZ (2) MARTA ZARNOWSKA | Defendants |
Ms Ayub, Solicitor, instructed for the Claimant
Ms Salmaan Hassanally, Counsel(instructed by Silverstone Solicitors Ltd) for the Defendants
Hearing date: 13 November 2025
Approved Judgment
This judgment was handed down remotely at 9.30am on 19 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives
DISTRICT JUDGE HAYES:
This matter was listed as a preliminary hearing to determine the validity of a section 21 notice. The matter required me to consider:
Whether service of the section 21 notice was invalid because it required (a) a separate notice seeking possession (‘NOSP’) for ‘each’ tenant within the meaning of s21(1)(B) Housing Act 1988; or (b) whether service of the NOSP was required directly to the room on the Defendant’s case, or as the Claimant submits, simply on the ‘accommodation’, within the meaning of the Tenancy clauses 1.1 and 1.12.
Whether the property was, at the time of service of the NOSP on 9.1.2024, an unlicensed HMO for the purposes of section 73 of the Housing Act 2004, with the consequences in section 75, that the Claimant cannot rely on a section 21 notice.
Background
This will be briefly recorded, and doing the best I can post hearing where so much of the evidence fails to form a coherent picture. The claimant company is Regency Property Management (UK) Limited, and is the landlord of a property at 112 Old Bedford Road, Luton, Bedfordshire LU2 7PD (‘the Property’). On or around both 25 September 2017 and 3 April 2020, an Assured Shorthold Tenancy was entered into between the Defendants and the previous landlord.
Historically, the Property held a licence as a House in Multiple Occupation (‘HMO’). This appeared to be in force from 14 March 2017 to 13 March 2022 (Footnote: 1), prior to the Claimant’s ownership. The Property was acquired by the Claimant (via their Director, Shahid Ayub) on or around 22 July 2022 (the exact date is unclear). The assignment of the Defendants tenancy took place on around the 25.7.2022. This was notified to the Defendants on or around 5.8.2022. Nothing appears to turn on these dates.
A letting agent, My Estate Luton Limited (‘MELL’) managed the Property on behalf of the Claimant. The Director of MELL is Mr Richard Gedall. Mr Ayub for the Claimant says, when the HMO licence expired, MELL ‘emailed the Council to query what the licencing scheme were at that time’ (Footnote: 2). The Council is Luton Borough Council (‘LBC’) responsible for taking decisions on HMO licencing.
In his witness statement, Mr Ayub says the Council were due to inspect the property. He refers to ‘the email at Exhibit 5’ dated 16 February 2024. Here begins a disjunct in the timeline that is difficult to piece together, as it appears in or around November or December 2022, the Claimant took action to investigate whether they required an HMO licence.
On 6 December 2022 MELL contacted LBC by email. The material extract includes questions by MELL:
112 OBR
As per your instructions I have arranged for a fire marshal to attend and tell me what
I need to do to safely convert the entire building into studio flats and the final flat into a one bed.
Can you please confirm that the temporary exemption Notice I have sent is ok, as I do not want to inadvertently be running a HMO without a license, you have not responded on this particular very important point which I have raised to you a few times.
If the exemption notice is not correct could you please send me the one used for LBC as currently there is no document for this application on the LBC website.
It went on:
The Housing Act 2004 allows a person having control of or managing an HMO / rented property which is required to be licensed but is not so licensed to notify the authority of their intention to take particular steps with a view to securing that the house is no longer required to be licensed.
this was on your website but not the documents.
If you could please get back to me asap to confirm that I have acted correctly or advise what I need to do to amend if not correct as this is the first one I have sent.
LBC appear to have replied to this email, dated 07 December 2022 [D30]4:
TEN:-
The Council does NOT automatically have to grant a TEN especially if they feel the owner is applying to avoid licensing please can you resend this to me confirm what property it relates to
MELL responded to LBC, dated 09 December 2022:
You do not have the ten form on your web site, only the information to what it relates to. Shall I use another template and amend it ? Am I allowed to do that ? I have asked you several times if you could please direct me to where the forms are or send them to me.
It was agreed by the Claimant that the bundle did not contain the purported notification to LBC pursuant to s62(1) Housing Act 2004. I understood Ms Ayub, Solicitor for the Claimant, to invite me to infer notification was made. She also made an application for an adjournment for further evidence, which I refused.
The application for further evidence was renewed after the hearing. In a statement submitted after the hearing on 17 November 2025, the Claimant, Mr Ayub, says a Temporary Exemption Notice application was prepared by MELL and submitted to Luton Borough Council (‘LBC’), who are responsible for taking decisions on licensing of HMOs.
Mr Ayub says that MELL prepared and submitted a TEN application to LBC (Footnote: 3). Attached to that statement is included an electronic document described as an ‘Agreement History’, identifying creation of the TEN application on 10.11.2022 and sharing that document on the same day with others including ‘AK’ [I have anonymised the name] at LBC.
There is further included a document which appears to be a TEN application, and a screen shot of an email.
Procedure
Little turns on the procedural process so I record in outline:
The claimant filed a claim for possession , issued 28.3.2024. The Defendant had until 2.4.2024 to file a defence
On an unknown date, the Defendants filed a defence to the claim.
The claim was struckout on 3.6.2024. That was set aside and a possession order made on 10.6.2024. The filed defence was not on the file.
On 3.10.2024 the possession order was set aside and directions were given for a further defence.
On 16 December 2024, directions for disclosure and a preliminary hearing on two issues was ordered.
The decisions therefore I am left to make are:
Whether to permit the late application for further evidence;
whether to find the section 21 notice is valid.
Legal Framework
The legal framework was addressed during the hearing, but post hearing Mr Hassanally covered the main provisions relating to HMOs in more depth, and Mr Ayub made reference to some provisions for the Claimant. Doing the best I can I’ll try and structure the position.
Section 21 of the Housing Act 1988 governs the recovery of possession where the tenant is otherwise not at fault. Section 21(1)(b) provides for service by the landlord of a notice ‘to the tenant’. The Defendants argue this means, in effect, ‘to each tenant’.
The Housing Act 2004 (“the 2004 Act”) defines a house in multiple occupation in section 254. No sustained submissions were heard on this, either because it appeared accepted at the hearing or it faded in light of other arguments. The 2004 Act sets up a licensing regime. The Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 (“the 2018 Order”), which came into force on 1 October 2018, indicating which HMOs have to be licensed.
Section 61(1) of the 2004 Act provides that "every HMO to which this Part applies must be licensed". Section 62(1) of the Housing Act 2004 provides that the section applies where a person having control of or managing an HMO which is required to be licensed under section 61(1), but is not licensed, notifies the local housing authority of his intention to take particular steps with a view to securing that the house is no longer required to be licensed. If such a notice is served, the house is not required to be licensed for the period during which the notice is in force (section 62(3) and (4)).
A series of enforcement measures are listed in the Act. Material to this case, section 75(1) provides that no section 21 notice may be given in relation to a shorthold tenancy of a part of an unlicensed HMO so long as it remains such an HMO. The section defined ‘unlicensed HMO’ in accordance with section 73.
Section 73 provides:
73 Other consequences of operating unlicensed HMOs: rent repayment orders
For the purposes of this section an HMO is an “unlicensed HMO” if–
it is required to be licensed under this Part but is not so licensed, and
neither of the conditions in subsection (2) is satisfied.
The conditions are–
that a notification has been duly given in respect of the HMO under section 62(1) and that notification is still effective (as defined by section 72(8));
that an application for a licence has been duly made in respect of the HMO under section 63 and that application is still effective (as so defined).
Decision
The issues are narrow, but there appears no single authority on either matter. My decision will not bind any other court, but might aid in analysing the area, should such issues arise further. It is possible such issues are live despite the Renter’s Right Act 2025 ending section 21 evictions in 2026.
Issue 1: Was Notice required ‘to each tenant’
I am satisfied the notice seeking position was not required to be served on ‘each tenant’ under s21(1)(b):
Section 45(3) of the Housing Act 1988 interprets the singular as plural, and therefore service on one tenant is good service on the other. The Interpretation Act 1978 supports that view.
There is no authority for the proposition. A single notice naming both tenants is sufficient.
The Defence paragraph 12f accepted ‘they’ received notice. The argument is about the manner. There is no practical reason why a single notice naming joint tenants would not come to their attention if served a notice naming them both at the property.
I am satisfied Notice delivered to property, addressed to the tenants, means notice was properly delivered:
I am satisfied ‘accommodation’ in tenancy in clause 1.1 as read with clause 1.12 both allow service at the Property. Accommodation does not mean ‘the room’ in the agreement. While issues might arise with the system coming to attention of tenant, the post box system was sufficient in this case and it did come to their attention. Service was met (Footnote: 4) where delivered to the post box in the accommodation.
I am satisfied Section 196 of the Law of Property Act 1925 allows for valid service of the notice to be made by or personal delivery to the tenant's property because the tenancy explicitly permits this in the general notes paragraph 5.
CPR 6.3 not likely determinative. But the Table in 6.9 includes last known residence for individuals is likely to mean the property. I understand such Notice couldn’t be posted through door.
I am not persuaded that any ambiguity in the AST should invoke any ‘contra proferentem’ principle. The argument was somewhat undeveloped. The term is not ambiguous if applied as I have. The application of contract law principles to the tenancy are unnecessary to explore further.
For these reasons notice was validly served on the tenants.
Issue 2: Is the Property an unlicenced HMO
I first need to decide whether or not to accept late evidence.
I have little sympathy for the Claimant who had the assistance of a solicitor. The imprecision in competing the claim form, or statements that have been submitted, along with a fistful of documents, has led to a prolonged difficulty in determining the matter.
I have considered the documents in anticipation of determining the application and the ultimate question. But for the following reasons I refuse their inclusion:
The Application fails to frame itself with reference to the Denton criteria. It is again left to the Court or Defendant to extract what is said and place it in the framework. I do that below.
The breach is serious and significant towards the higher end of non compliance. DJ Gill ordered disclosure by 20.01.2025. These items attached were not included. The issues to determine were clear in the order. The disclosure list in DJ Gill’s order did not include specific identification of the attached documents, but it would have been clear to the parties because the Defence specifically raised the issue.
There is no good reason given at all for non inclusion.
In all the circumstances, exclusion is necessary to deal justly with the application:
Proportionality. The questions raise further issues, including whether LBC could access the TEN for the property at any time. If so, when? If ask the parties for submission on that, I elongate the entire preliminary hearing. The need to disclose meant these should have been shared by 20.01.2025. as the preliminary issue is determinative, it would be disproportionate to take further submissions, and potentially further evidence.
Compliance: the need for a Claimant in a routine application of section 21 to properly prepare requires upholding. This case has taken up court resource, and inclusion would take further resources. It is unfair of the Claimant to rely on the other party and court to identify gaps in their case and be given a chance to fill them in. That is the same way they managed their confusion about the need for a HMO licence when it is obvious they needed one unless works were undertaken to take them out of scope of the legislation.. I entertained the application in anticipation of a decisive answer. That has not happened.
Delay: it appears no additional thought was given between 16.12.2024 and the application dated 14.11.2025. . This application was made after judgment was reserved. There is a significant delay since 20.01.2025. The application does not ask for dispensation for failing to make disclosure in time.
Prospect of success: I deal with below. As the documents would not succeed, I omit them.
At this stage, having no evidence that the Claimant notified LBC, they appear to be an unlicensed HMO, and could not have served a valid s21 notice in January 2024.
It is not possible to infer a notification occurred. LBC have never confirmed that. It is clear LBC could not access the TEN document. The Claimant made no coherent argument that any other communication constituted notification.
This is enough to dismiss the claim. However, as I have rad the material I will comment on what I would do if included in any event.
The claimant purported to serve a section 21 Housing Act 1988 notice on 9.1.2024. The validity of this notice is in dispute. The dispute turns on whether notification was duly given to the Local Authority, meeting the requirements of sections 73(2)(a), as defined in s62(1).
At the time the notice seeking possession was served, the Defendants submit there were 6 occupied rooms, in addition to their own room, making 7 occupied rooms (Footnote: 5). The Claimant has no coherent answer to this. The Claim Form seeking possession indicated that a licence was not required but I infer that the Claimant counted this from some other date and not the date of the section 21 Notice. I have not found it necessary to spend time assessing who lived at the Property after the Notice. I consider the Property is likely on balance to have met the HMO criteria at the date of the section 21 notice was served.
That the property was required to be licenced at the time of the service of the section 21 Notice is not expressly disputed. The Defendants are under the impression the Claimants admitted as such but without listening to the hearing I cannot recall. Therefore on 9.1.2024, the property met the requirements of 73(1)(a) and required a licence. The focus is on whether conditions in 73(2) are met.
The condition in 73(2)(b) is not argued. It is not said an application for a licence has been duly made, only a TEN.
This leaves the question of whether the condition in s73(2)(a) is met. This requires:
a.. notification has been duly given in respect of the HMO under 62(1); and
that the notification is effective, within the meaning of 72(8).
Even if I had included the documents in the late application, I am not persuaded notification had been ‘duly given’ under s62(1), or that it is effective under 72(8):
No one has identified a single process for such notification at the material time, although the Defendant has addressed the system as it applies now (Footnote: 6). Nor is there any prescribed format for notifying the Local Authority. In principle, therefore it appears notification can be made in any format in any way. That is a wide discretion applied for the Claimant’s benefit. I am not persuaded the fact the TEN appears to come from Camden is material.
The communication to Luton Borough Council came from MELL, yet MELL have not put forward any direct evidence. The Statemen of Mr Ayub, in paragraphs 11 and 12, does not explain why the Managing Agent has not directly explained what happened. Instead, MELL have provided the owner a digital log. I have no real explanation of this document. I am left to interpret it. This reduces its reliability. If it shows AK at LBC was emailed a TEN, then potentially the TEN is enough to ‘notify’ within the meaning of s62(1). But that requires a major inference from me.
However, the emails suggest LBC could not open a file for the TEN application. They say that in an email from AK on 7.12.2022 at 14:58 in relation to 57 Lyndhurst Road. I infer LBC could not open or access the document sent relating to 112 Old Bedford Road. By inference, LBC were not notified. There is no positive reference to the application in other emails.
I am not persuaded that references in emails on 7.12.2022 regarding TEN, or fire inspection of the Property, import that LBC were notified under s62(1). The TEN comment comes after the application problems relating to 57 Lyndhurst Road. The need to inspect 112 Old Bedford Road is not acceptance of being notified.
There is nothing from LBC to suggest they accept they were notified. A single confirmation from LBC would be enough to dispose of this issue. It is clear problems arose for MELL from the confusion and assumptions made by them that they had notified LBC. I am afraid that appears to be caused by the emails sent dealing with multiple property issues.
It is not necessary to analyse the content of the TEN apparently sent, which indicated closure of the shared facilities in January 2023 and the truth of what has been said. However, I understand there is a substantive dispute about the works. This would cause further investigation into the issue about the genuine nature of the application, which no one sought.
I am not entirely clear what notification and effective notification mean. At the very least, they mean LBC are notified works to come out of scope of the HMO regime. No argument was heard how effective notification continues, within the LBC decision making process, but this must mean LBC grant a TEN, or the decision is pending; or if they have decided not to grant a TEN, the time for appeal has not expired. The Claimant’s only argument is that the LA had not decided in accordance with 72(8)(a). The Defendant disputes that notification or application was ‘duly made’. For reasons given, I do not consider LBC accessed the TEN sent, or were notified by email or any other way, such that notification was not made, and was not effective.
Therefore, even if I had included the document, the issue would not have been proven by the Claimant.
Outcome
As a consequence of the above, the Property was an unlicensed HMO at the time of service of the section 21 Notice. Therefore the Notice is invalid. I therefore dismiss the claim for possession and will reconvene to deal with any other matter.
Post hearing Mr Ayub for the Claimant asked to attend on a different day. He also made further submissions on the matter. I have omitted the points which seek to reargue whether the property is an HMO. But on the inference to be drawn from LBC’s lack of enforcement action, that is not a material matter, and could have been remedied by asking LBC whether they accept they were notified at the time of serving the section 21 notice. For the purposes of serving a section 21 they were required to take other action, and they did not. I do not consider a section 21 notice could be issued in the circumstances.
I will deal with ancillary matters such as costs separately.