Landlords must make sure that they are aware of licensing

Tuesday, November 24th, 2015 - By David Smith, Partner at Anthony Gold Solicitors

There has been a recent HMO prosecution appeal which makes a key point about publication of property licensing schemes.

When making an HMO licensing designation there is a duty under s83 of the Housing Act 2004 on the local authority to ensure that the designation is notified in the local area. The means of doing so are set out in that section and in accompanying regulations. There is also a duty on a local authority under s85(4) to “take all reasonable steps to secure that applications for licences are made to them in respect of houses in their area which are required to be licensed under this Part but are not so licensed.”

Thanet thought they had complied with these duties and sought to prosecute under s95 for failing to have a licence in an area in which a selective licensing designation was in operation. The Defendant defended on the basis that he did not live in Thanet and that Thanet had breached their s85(4) duty because they had not sufficiently publicised the scheme to him (as he was not aware of it) and so they had not taken all reasonable steps to procure that applications for licences were made to them.

On the face of it this is not a bad argument. However, the permitted defences to HMO, additional or selective licensing are rather limited in nature and it is not permitted to be used to frustrate the essential purpose of the legislation using a defence. In other words you cannot say that the prosecution should not be allowed for a reason unless that reason is very good indeed and you cannot undermine the point of the legislation itself. However, this point was apparently lost to the magistrates who acquitted the Defendant. Thanet appealed by way of case stated to the Divisional Court.

The Divisional Court held that the magistrates had misunderstood the obligation to publicise. The fact that the Defendant did not know about licensing in Thanet did not automatically mean that they had not fulfilled their duty and that he had a defence. If Thanet had in fact not communicated effectively then that might found a reasonable excuse defence but there was no evidence of that and it was not possible to proceed backwards from the Defendant’s lack of awareness to the presumption that Thanet had got things wrong. There had been an over-interpretation of s85(4) in this respect.

The appeal was allowed and the case will now go back to the magistrates court who will likely find the Defendant guilty.

The key point to note here is that the obligation on a local authority to notify people of the existence of a licensing designation is a general one. They are not obliged to inform each and every landlord in an area. Landlords are primarily responsible for keeping their eyes on local authority websites and on local papers to ensure that they are aware of official notices.

If you have any questions and would like legal advice, please contact David Smith who is a Partner in the Housing team at Anthony Gold. His email is David.Smith@anthonygold.co.uk