Local Authority prosecutions of landlords who run unlicensed HMO’s are on the rise. At Berkeley Sahota we have extensive experience of defending landlords who have received a summonsed to attend a Magistrates Court and face criminal charges including:
· Being a person with control or management of a Unlicensed HMO (s.61 and s.72(1) of the Housing Act 2004
· Breaching HMO Management Regulations e.g, failing to ensure that firefighting equipment and fire alarms were maintained in good working order (Reg 4 (2) of The Management of HMOs (England) Regulations 2006 and Section 234 (3) of the Housing Act 2004.)
· Statutory Overcrowding
· Illegal Evictions
Criminal Liability for Landlords - HMO Prosecutions
All HMOs must be licensed in compliance with the mandatory scheme which applies nationally to any three-storey property occupied by at least 5 persons where the occupants live in 2 or more single households. You could face criminal charges if for example you rent out a 3 – storey property to 5 or more individuals who are not related and live in separate households. There is an additional and more detailed 6 part test for a HMO which also applies.
The consequences of a conviction are serious. Previously landlords could be fined up to £20,000 for running an unlicensed HMO. Recently the law has changed and the courts can impose an unlimited fine.
Anyone convicted of an unlicensed HMO offence will find it difficult to obtain a HMO licence in future as they are likely to fail the “fit and proper person” test. Company prosecutions are also common and can result in directors disqualification.
Berkeley Sahota maintains a database of all the unlicensed HMO prosecutions in the UK that have been reported nationally over the past few years.
Discretionary Licensing Schemes
It is not just Landlords of HMO’s who may require a licence to rent out a property. Many local authorities also have discretionary licensing schemes. For example, Newham Council was the first local authority to introduce a licensing system for private landlords two years ago. 35,000 private rental properties in the borough must now have a licence. In a fast few years, the council has banned 25 landlords, prosecuted 439 others and recouped hundreds of thousands of pounds in fines and unpaid council tax.
For more information see here.
Breaches of Management Regulations and Overcrowding
All HMOs, whether licensable or not, must comply with Management Regulations. These are a specific set of regulations that impose duties on both the person having control of the HMO, and in some cases the persons occupying the HMO, and include the following:
- Maintenance of common parts, fixtures, fittings and appliances
- Maintenance of living accommodation
- Safety Measures
- Supply and maintenance of gas and electricity
- Provision of information for tenants
- Waste disposal facilities
Often, landlords will also find themselves summonsed in connection with breaches of these regulations for e.g. failing to ensure that a fire alarm is in working order or installing fireproof glass in all the bedrooms. Fines of up to £5000 can be imposed. Less common are prosecutions for statutory overcrowding, a criminal offence under the 1985 Housing Act were a landlord could be prosecuted if it is demonstrated she had caused or permitted the house to become overcrowded.
Rent Repayment Orders
A tenant living in a property that should have been licensed, but was not, can apply to the Residential Property Tribunal to claim back any rent they have paid during the unlicensed period (up to a limit of 12 months).
Councils can also reclaim any housing benefit that has been paid during the time the property was without a licence.
Taking Legal Advice
Many of the clients who approach us have not taken legal advice before deciding to rent out their properties and are often not aware of the law governing HMOs. The law concerning HMO’s is widely drafted. Local authorities can prosecute those managing or having control of a property – this can include not just landlords but also freeholders or managing agents or anyone to whom rent is paid, directly or indirectly. Detailed guidance on a local authority’s policy towards HMO’s can normally be found on their website.
If you have been summonsed in connection with a Local authority HMO prosecution please contact our regulatory team.