Offences in relation to licensing houses of multiple occupancy

A house of multiple occupancy (“HMO”) is defined under the Housing Act 2004 as a property which has at least three tenants living there forming more than one household and the tenants share a toilet, bathroom or kitchen facilities with each other.  A group of people who are not members of the same family living in the same property will form more than one household.

The Housing Act 2004 makes it a requirement for certain HMOs to be covered by a licence. Licensing enables local authorities to assess the suitability of landlords and attach conditions pertaining to the upkeep of the HMO in question.  Under law, HMOs can be licensed either by way of mandatory licensing or additional licensing. 

Mandatory licensing

• of three or more storeys;
• that are occupied by five or more persons; which
• form more that one household.

Additional licensing applies when local authorities decide to impose licensing requirements on HMOs in its area which do not fulfil requirements of mandatory licensing.  This becomes necessary if the local authority becomes concerned over certain aspects of HMOs in a particular area. 

The local authority may prosecute the property owner, landlord or managing agent if there has been a breach of Section 72 (1) of the Housing Act. This section stipulates:

“a person commits an offence if he is a person having control or managing an HMO which is required to be licensed under this part but is not so licensed”

In other words, those controlling a HMO which qualifies for a licence but does not have one in place will be guilty of a criminal offence. 

Section 72 (5) of the Housing Act provides a defence of “reasonable excuse”.  This is an extremely difficult defence to establish.  Ordinarily, inaction or ignorance will not suffice.  In order to rely on the defence, the defendant must be able to demonstrate that things have occurred outside of their control.

There appears to be an increase in the number of cases prosecuted by local authorities with a particular focus on the student rental market and accommodation provided to refugees and asylum seekers. These types of tenants are often viewed as the most vulnerable.

If a defendant is summonsed to attend court and is found guilty, the level of fine a Magistrates Court may impose is unlimited.

If you are a property owner, landlord or managing agent facing prosecution it is vital that you seek specialist advice. Our team at Stephensons has expertise in all areas pertaining to HMO licensing, call us on 01616 966 229.