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A conviction could have potentially harmful consequences, including fines, being banned from being a landlord and being forced to repay rent to affected tenants.
If you have been contacted by your local authority concerning a suspected breach of any of the various Housing Acts, it is essential to get the right legal advice and representation straight away to give yourself the best chance of a positive outcome.
Freemans Solicitors’ business crime lawyers will be able to help you if you are facing a Housing Act prosecution. They have particular expertise and experience in defending HMO prosecutions. We provide practical, highly effective legal advice to individual landlords/businesses facing an investigation or prosecution for a Housing Act breach. This may mean making representations on your behalf to avoid prosecution. If you are already facing a prosecution, we will use our experience and expertise to advise you on any available defences or alternatively seek to help you minimise the effects of any conviction.
The Housing Act 2004 includes specific requirements for landlords of properties deemed to be Houses in Multiple Occupancy (HMOs).
There are various types of offences related to breaches of any of the relevant Housing Acts, including those pertaining to Houses in Multiple Occupancy (HMOs). Our criminal defence lawyers offer expert advice and skilled advocacy for the full range of Housing Act offences, ensuring you have the best possible legal support.
If you are a private landlord or the manager of an HMO, you can be held legally liable if the property is not correctly licensed by your local authority. You will need a licence for an HMO if the property is considered a ‘Large HMO’. A Large HMO is a property:
(a) that is rented to 5 or more people who form more than one household
(b) is one where tenants share toilet, bathroom or kitchen facilities
Even if your property is smaller and rented to fewer people, you may still need a licence depending on the area.
There are strict regulations for managing an HMO. These include requirements to take safety measures, including fire safety; maintain the water supply and drainage, supply and maintain gas and electricity, maintain common parts and living accommodation and provide waste disposal facilities.
These are set out in the Management of HMOs (England) Regulations 2006, and Section 234 (3) of the Housing Act 2004 provides that any breach of those regulations constitutes a criminal offence, which could result in prosecution.
The Housing Act 1985 sets out strict standards for how many people can occupy a rental property legally. There are two basic standards used to establish whether a house is “overcrowded”:
The Room Standard – A house can be deemed overcrowded if two people of the opposite sex who are not a couple are forced to sleep in the same room (not including children under 10).
The Space Standard – This is based on a calculation of the number of people per room and the floor area of those rooms. So, for example, there should never be more than two people sharing a room, and a room should be a minimum of 8.37 square metres to accommodate a single adult.
It is the responsibility of the landlord and their agent to ensure a property is not overcrowded, and they can be held liable if the Room Standard or Space Standard is breached.
When evicting tenants, there is a strict legal process you must follow. If you don’t, you could face prosecution for ‘unlawful eviction.’ The Protection from Eviction Act 1977 makes this a criminal offence
You may be subject to criminal proceedings if you fail to follow the prescribed processes by, for example, by not giving correct legal notice, using force to remove tenants or changing the locks to prevent access to the property.
If you face prosecution for unlawful eviction, you will need advice to determine whether you have a defence and the strength of any such defence. There are a number available, and we would advise you whether you had one to advance. If based on what you tell us you do, our specialist lawyers would represent you at trial.
The Protection from Eviction Act 1977 also makes harassment of a residential occupier a criminal offence. Two broad categories of act(s) are set out, which when performed by the landlord or agent, with the requisite criminal state of mind, fall within the scope of the offence. Namely when the landlord and/or agent:-
“(a) does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or
(b) persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence.”
The Protection from Eviction Act 1977 provides a statutory defence to this charge. Namely that the landlord and/or agent charged:-
“…had reasonable grounds for doing the acts or withdrawing or withholding the services in question.”
Many local authorities now require all private landlords to be registered and licensed and failure to adhere to this can lead to prosecution. It is therefore vital to be aware of the requirements for your local authority area.
There are various potential penalties for an HMO or Housing Act offence, with the exact consequences depending on the nature and seriousness of the offence.
These include:
You may also be deemed unable to register an HMO with the relevant local authority in future and be ordered to make a contribution towards the costs of the prosecution.
These penalties can cost you a significant amount of money, make it difficult for you to continue to act as a landlord in future and have a very negative impact on the reputation of your business. It is therefore essential to get expert legal advice and representation at the earliest opportunity. This can allow you to make a successful defence against an HMO or Housing Act prosecution or minimise the penalties if convicted.
Our highly talented business crimes defence team is made up of outstanding litigators and advocates and are a wise choice if you or your business is facing either an investigation or a prosecution that is concerning HMO and Housing Act offences.
In December 2017, Freemans Solicitors was awarded the title of Business Crime Law Firm of the Year in the prestigious Lawyer Monthly Legal Awards. We have also been recommended in the leading legal directories of quality lawyers.
To discuss your case in confidence, please contact our HMO and Housing Act prosecutions team directly via crimelawyers@freemanssolicitors.net or 020 7935 3522 always remembering that early advice is crucial for the best possible outcome. In the case of an emergency please call our 24/7 number on 07973 259 382.
This Act introduced some key measures aimed at better regulating the private rental market. These include:
There have been various Housing Acts aimed at regulating the private rental sector. The most recent of these are the Housing Acts of 1985, 1988, 1996 and 2004. These built upon the earlier Protection from Eviction Act 1977. Local authorities are responsible for investigating and prosecuting Housing Act offences, as well as issuing enforcement notices.
House in Multiple Occupation.
If a Local Housing Authority is taking or seeking to take enforcement action upon the basis of breaches of the legislation concerning HMO’s, they must be able to prove to a criminal standard that the property is, in fact, an HMO in law. There are five ways in the Housing Act 2004 that prescribe whether a property is an HMO. They are set out as five separate tests. If the property meets all the different criteria in one of the tests, it is an HMO. The most common are ‘the standard test’, ‘the self-contained test’ and ‘the converted building test. If the property is an HMO, it will be subject to the HMO Management Regulations, whether required to be licensed or not. Our expert HMO team can advise you as to your property’s exact status and, importantly, challenge the Local Housing Authority on your behalf if they have got it wrong.
The property must first be considered an HMO in law. If it is not an HMO, then, of course, no licence is required. If it is, a licence may be required. The test here is superficially straightforward, but the law is, in fact, quite complex. It will be necessary to consider the following seven questions with you to provide an accurate answer: –
We can give you specialist HMO advice should you be facing enforcement action.
The Housing and Planning Act 2006 introduced financial penalties as an alternative to criminal prosecution for certain offences. These are:
The Local Housing Authority must still prove that an offence has occurred to a criminal standard. The maximum penalty that can be imposed for each offence is £30,000. The Local Housing Authority must issue a formal document called a ‘Notice of Intent’ as a first step before they can move to a Final Notice issuing the penalty. Once a Notice of Intent has been served, the landlord and/or agent will have a period of 28 days in which to make representations regarding the proposed course of action. We are proficient and experienced in drafting those representations to seek to either avoid the liability altogether or reduce it
Once the Local Authority has issued a Notice of Intent to issue a Financial Penalty, allowed 28 days for representations, and considered any representations, they can then issue a Financial Penalty Final Notice. This can then be appealed at the First-Tier Tribunal Property Chamber. There are very tight deadlines for appeals to the Property Chamber and missing a deadline can be disastrous.
The Civil Penalty Regime is very much designed to be an alternative and diversion from prosecution. If a civil penalty is issued for an offence, the Local Housing Authority can no longer prosecute the recipient of the penalty for the same offence. That said, you can still potentially be named and shamed on the Rogue Landlord’s register and questions can be asked by Local Housing Authorities as to whether you are a fit and proper person to be a landlord.
Each local authority must draft their own policy to decide on the approach they take to determine the level of a civil penalty. These policies will differ in content and emphasis. They should, however, include consideration of the following matters: –
Our expert HMO lawyers can advise on whether there is any defence to the proposed civil penalty. If not, we will examine the penalty closely against the Local Housing Authority policy and advise you whether the amount sought can be challenged. Understanding the policy, the approach of the Upper Tribunal to penalty challenges and what needs to be made out is critical.
If you need emergency help on a criminal matter, if you have been arrested or are
worried that you, or someone you know, may be arrested, our line is open 24 hours a day.