The HMO Legal Basics series is a collaboration between Tessa Shepperson and David Smith of Anthony Gold Solicitors. An HMO is a House in Multiple Occupation.
We finish this series with a post from David Smith on prosecutions.
Prosecutions for HMO related Offences
In some cases the worst will happen and the local authority will consider prosecution. This post looks at what can happen and how to deal with it.
Notices and Notifications
If a local authority believes that a property is being used as an HMO then they are entitled to inspect the property without notice to establish whether this is the case.
If you attempt to prevent this then they will obtain a warrant from the magistrates court entitling them to enter and will attend with the police.
Alternatively, they may serve a notice on you seeking answers to various questions. This notice will have to be answered within 28 days and failure to do so is an offence.
Local authorities enforce this very strictly so it is very important that full information is given within the time limit set.
If you need more time then you should ask for this early, not at the last minute, and do so by email or in writing so there is good evidence that it was agreed.
Interview
Normally, if a local authority is confident that you have committed an offence then they will write to you stating that they believe an offence has been committed, what it is and inviting you to give an interview.
Usually this letter will include a caution that everything you say may be used in evidence. This is done because if you then fail to attend for interview the Court can draw an assumption that you may not be telling the truth.
You do not have to go for an interview and if you do not you are taking a big risk. It is usually best to get some advice at this stage.
At an interview you are not obliged to answer any question and you can simply say “no comment” to anything when asked.
In my experience interviews are a problematic area as a large number of people get into a mess during them by making statements that are not entirely accurate or that do not help their case.
This is often made worse by poorly phrased or leading questions from Council officers who do not always understand the nature of a tenancy.
In practice it is often better to seek a list of questions in advance and respond to them in writing. This written statement can be taken to the interview and read out after which no further questions are answered.
They will be asked but you can then say ‘no comment’ to all of them.
Provided the written statement gives enough relevant information then no adverse inference can be drawn by you not answering questions.
Strict Liability and Reasonable Excuse
Almost all of the offences associated with HMO licensing are what are known as ‘strict liability’ offences.
This means that if you have committed the offence then the fact that you did not mean to or that it was an accident are not relevant. The fact of the offence occurring on your watch means that you are guilty.
All of the offences also have a defence built into the legislation that means that you are not guilty if you have a ‘reasonable excuse’.
You should understand that a ‘reasonable excuse’ defence is very hard to make out and the excuse is going to have to be very good indeed. Reasonable excuse defences are not made out on the basis of making a mistake or not being aware.
A reasonable excuse defence for HMO licensing would be made out where the tenants had lied to you or obstructed you in some way or where you had been misled by the Council or by another person into thinking you had an HMO licence.
In other words a ‘reasonable excuse’ must be something that is genuinely outside your control and not something caused by your action or inaction, however innocently intended.
Finally
If in doubt take advice and take it very early.
I am often approached by people very late in the day, occasionally once they have already pled guilty to the offence, who want assistance.
Help is usually much easier to provide at the outset and it comes at a lower cost as well.
Do not ignore the local authority and do not be combative with them. You may think that they are harassing you but they are also seeking to do their job and starting a fight with them will ultimately hurt you more than it will them.
Further HMO resources:
Advice: If you need some legal advice, for example if you Local Authority have contacted you asking for an interview, you can use our ‘HMO Hotline‘ telephone advice service.
Training: Easy Law Training has regular workshops on House in Multiple Occupation Law & Practice. You can read about these >> here (you will need to scroll down to find out the dates).
