Applying for a HMO licence
The process for applying for a HMO licence, or a licence required for a property covered by selective licensing, will vary according to the local authority receiving the application. In most cases, it will be the housing or environmental health department of the local authority that will be responsible for assessing and processing applications.
When applying for a licence, it is useful to bear in mind the following information:
- A separate licence is needed for each property
- A licence will normally last for up to five years
- The landlord can hold the licence or nominate someone else such as a manager of agent (with their agreement) to be the licence holder. Whoever holds the licence, must be the person who is most appropriate person to hold the licence (likely to be the person who receives the rent for the property)
- The licence holder and any manager of the property will have to be considered ‘fit and proper’ and the property will need to meet minimum standards for the licence to be granted
- A licence may not relate to more than one property and is not transferable to a different property, or to a different person.
Failure to apply for a licence required by the Housing Act 2004 is a criminal offence and - following a change in the law in 2015 - landlords can now be punished with an unlimited fine for each offence. Local authorities will frequently look to prosecute landlords who fail to obtain a licence. In addition, charges can also be brought when landlords with a licence fall foul of the HMO Management Regulations 2006. Moreover, the local authority, and in certain circumstances, the tenant, can apply for a repayment order, under which they can reclaim rent paid during the period, up to a maximum of 12 months, in cases where the landlord did not have a licence
If a landlord is suspected of having committed an offence under the Housing Act 2004, their property may be subjected by an inspection conducted by the local authority. In addition, they may be required by the local authority to provide information and evidence pertaining to the property. This will arise before any decision has been made as to whether the landlord or manager should be prosecuted. The information will usually be required by way of a legal notice, which, if ignored, can constitute a separate criminal offence.
Landlords and managers are also frequently invited to attend interviews under caution as part of the investigatory process. Such interviews will permit the local authority to ask the landlord questions as to why the property has not been licensed. The purpose of an interview under caution is to question a person on their suspected involvement in an offence. As such, interviews are recorded, and answers provided can be referred to in any subsequent proceedings. Independent legal advice should always be sought before attending such interviews.
In cases where criminal proceedings are brought, it may be possible that the landlord or manager in question has a defence. The Housing Act 2004 provides a statutory defence of ‘reasonable excuse’, which, although normally difficult to establish, will mean the landlord or manager is not guilty of an offence - even if they have failed to obtain a licence. Legal advice will need to be taken by those charged to determine if such a defence exists.
Although failing to obtain a licence without reasonable excuse is a criminal offence, it is important to note that not all cases result in a court appearance and a criminal conviction. Stephensons are regularly instructed by landlords and managers throughout all stages of the enforcement process, and have an accomplished record of resolving cases without the need for the criminal proceedings before a Magistrates’ Court.