Upper Tribunal issues substituted banning order in case involving 104-year-old landlord

Upper Tribunal Judge Elizabeth Cooke set aside a provision made by the FTT which she said was irrational in insisting that all affected tenancies were ended as soon as possible.

Judge Cooke said in her ruling that landlord Jama Ahmed Farrah had been served with the banning order by Sheffield City Council under section 15 of the Housing and Planning Act 2016, preventing him from acting as a landlord following conviction for two offences under section 1(3A) of the Protection from Eviction Act 1977,

At a hearing Mr Farrah accepted he was unable to manage his properties and proposed his adult children would do so.

The FTT rejected that and ruled the banning order would take effect “on termination of the current tenancies of the respondent's properties. Each such tenancy is to be brought to an end on the first possible date following the date of this order”.

Deputy Chamber President Martin Rodger KC gave permission to appeal over whether the FTT had the power to order the end of 13 tenancies without those affected having the opportunity to make representations, and whether appropriate consideration was given to their interests.

Judge Cooke said there was no express power in the Housing Act 1988 for the FTT to bring tenancies to an end.

She said: “…it is very troubling to see an order requiring the landlord to bring tenancies to an end without express and careful consideration of the interests of the tenants.

“A consideration of their interests is in any event one of the things the FTT must bear in mind when deciding whether or not to make a banning order.”

The FTT’s stance “would not appear to have been sufficient when the FTT was considering whether to require that those tenancies be brought to an end”.

Judge Cooke said: “Taking first the provision that the banning order was to take effect ‘on termination of the current tenancies of the respondent's properties’, in my judgment that order was irrational.

"The problem is the well-known difficulty in making an order to take effect on the occurrence of an event that might not happen”.

This was irrational “because it provides for the banning order to take effect at an uncertain point that might never occur”.

The FTT’s order also failed to provide that the ban was postponed only in relation to the existing tenanted properties, with nothing to prevent Mr Farrah from letting another property in the meantime.

“[In] general an order in this format is liable to [be] ineffective because it leaves open a serious loophole,” Judge Cooke said.

“As to the requirement to bring the tenancies to an end, in my judgment this was an improper exercise of discretion because no thought has been given by the FTT to the effect of that upon the existing tenants - as section 16(4)(d) requires. Merely to have inquired as to the tenants' identity and the terms of their agreements is insufficient.”

She set aside the FTT’s order concerning ending tenancies and substituted a new banning order under which Mr Farah is banned until 10 September 2030 from letting or managing property.

Judge Cooke concluded: “The effect of the order I now make is that if the tenancies that existed at the date of the FTT's order have now all been brought to an end, then the order is now in effect without exception.

“If any of the tenancies that existed at the date of the FTT's order is still in existence, then the banning order will take effect in relation to each such property three months after the date of this appeal decision, or when Mr Farrah ceases to be the landlord of the property, whichever is the earlier.”

Mark Smulian