Retrospective HMO Penalties

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    Retrospective HMO Penalties

    Hi there,

    I run the management of the freehold of my share-of-freehold property of which there are 4 flats.

    One flat has been rented since 2013 and the other started being let in 2014/2015. In 2017 the council sent us a letter stating that they had reason to believe we were running an HMO illegally.

    I started the licence application but, honestly, forgot all about it.

    We got another letter and I continued with the application, however when I asked one of the landlords for their gas safety certificate she told me she was actually evicting the tenant as she needed the flat back herself as, for work reasons, she was moving back to the city.

    The tenant has now left and I told the council we were now 3/4 owner occupied so their is no need for a license, but they said their records show there is still a tenant and they have passed our case to enforcement.

    There is no issue with proving it's now owner occupied, however what I'm worried about is them prosecuting us for the last 2 years when we should have had a license but didn't.

    Can they do this? Or if enforcement agents came around and saw there were no tenants would all this go away?

    Thank you in advance!

    #2
    Yes, they can prosecute, even if the issue has now ended.
    They have (I think) six years to prosecute.
    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

    Comment


      #3
      Pleased to hear of councils enforcing regulations. HMO laws only came in after deaths due to negligent landlords.

      How many years since the law came in?
      I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

      Comment


        #4
        theartfullodger,

        We're not a negligent landlord by any means and I think that's really unfair. We've found ourselves in this situation and before we could rectify the issue we were not an HMO anymore. I'm not really thrilled at the thought of spunking £500 (I think the fee is a joke btw) for something that doesn't apply to us anymore.

        The owner of the flat in question is moving back to London therefore needs the flat, so there has been no funny business surrounding evicting tenants in order to avoid licensing.

        But I don't want us to be prosecuted retrospectively, hence the question!

        Comment


          #5
          jpkeates,

          Thanks, where did you read that?

          Comment


            #6
            I am not clear why the Freeholder is responsible, rather than the owner of that particular flat, who rented it out.

            I may be out of date on this, in which case I would welcome a correction.
            Refer Mad Regulators to Arkell vs Pressdram.

            Comment


              #7
              It's because of the common parts :/

              Comment


                #8
                If the building is a conversion, which was not done to recent building control standards, it will be assumed to be high fire risk. High levels or owner occupation tend to result in lower risk behaviour and probably also pressure on the management to look after safety. If the owner occupation drops too low, the building comes under a special case of the HMO rule, to ensure its safety.

                Even without the special case HMO, it will still be covered by the Regulatory Reform (Fire Safety) Order, so the management will still be required to do fire risk assessments of the common parts, taking into account how the demised parts are used. That may well involve a professionally installed fire alarm system (purpose built blocks and recent conversions, tend not to need communal fire alarms, and their use is discouraged in those cases. It may also require the installation of emergency lighting, and upgrading flat entrance door and communal doors to be fire doors.

                Comment


                  #9
                  Is this about an s257(???) HMO?
                  ​​​​
                  I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                  Comment


                    #10
                    I think you should ask the Council on what basis they believe your property to be a licensable HMO. If its s257 then I don't think its mandatory licensable and I would question whether it would even be caught by additional licensing as an HMO

                    Comment


                      #11
                      Originally posted by salty66 View Post
                      jpkeates,
                      Thanks, where did you read that?
                      Six years is the standard time limit for most civil or criminal prosecutions and I don't think this is one of the exceptions.

                      There'd be no point to prosecutions for licensing being limited to situations where the breach is ongoing, otherwise no one would ever get prosecuted (because the moment the issue was raised, "they'd" fix the problem).

                      There's not much incentive for the council to pursue it though, because the problem not being ongoing should influence the penalty/fine.
                      Hopefully they have higher priorities.

                      Originally posted by midlandslandlord View Post
                      I am not clear why the Freeholder is responsible, rather than the owner of that particular flat, who rented it out.
                      The person responsible is whoever manages the HMO.
                      Which could be anyone.
                      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                      Comment


                        #12
                        Sorry, I'm not trying to be confrontational but if the property was a licensable HMO (and it may not have been) then-
                        I started the licence application but, honestly, forgot all about it.
                        We're not a negligent landlord by any means...
                        You neglected to complete/submit your licence application. (If it was indeed needed).

                        I'm not really thrilled at the thought of {being prosecuted} for something that doesn't apply to us anymore.......
                        I don't want us to be prosecuted retrospectively.....
                        Nobody is thrilled about the prospect of being prosecuted.
                        "Yes your honour, I did break the law but I don't do it any more; so please, please don't prosecute me for breaking the law in the past".

                        You either need to show that it was not licensable in the first place, or admit your mistake and face the consequences.
                        Everyone makes mistakes, admitting you were wrong and dealing with them is the important thing.

                        As JPK points out the consequences may not be that severe, especially as the council seem never to have actualy shown that you needed a license just said that they had "reason to believe" that you might need one.

                        Comment


                          #13
                          Originally posted by nukecad View Post
                          .....Everyone makes mistakes, admitting you were wrong and dealing with them is the important thing......
                          Many might say it's the adult thing also (For the avoidance of doubt, still making mistakes, still embarrassed when I do...)
                          I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

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