HMO Amenity Notice

5.2.6   The authority may inspect the living accommodation (using rights of entry under section 181 of the 2006 Act where necessary) to assess the state of the property and to ascertain whether there is any need to serve an HMO amenity notice.  Such a notice would require the owner to carry out work in order to make it reasonably fit for occupation.  If the owner fails to do so, the authority is entitled to carry out the work and recover any costs incurred from the owner.  Sections 146 to 153 and schedule 5 of the 2006 Act relate to HMO amenity notices.

5.2.7   Where an amenity notice is served, or the authority otherwise requests that work is carried out in order for a licence to be granted (without considering that an amenity notice to be necessary) and the property is occupied prior to the grant of licence, the local authority should work closely with the owner to ensure that any necessary works are completed quickly and so as to allow swift grant of licence e.g. 3 months from time of application. 

5.2.8   There will inevitably be some owners who do not respond to such approaches, and against whom enforcement action must be taken. There will also be some who apply for a licence but are refused and others who have their licences revoked or suspended. These cases must be monitored to ensure the property does not continue to operate without a licence.

5.2.9               An owner who is unwilling or unable to obtain a licence may agree to cease operating the premises as an HMO. However, it may not be possible to do this immediately, because of the terms of tenancy agreements, either statutory or contractual.

Temporary Exemption Order

5.2.10             A local authority can grant a temporary exemption order in response to an application by the owner of an unlicensed HMO that requires to be licensed.  This could prevent the owner from committing an offence while they make arrangements to move the occupiers out of the premises. The owner must explain the steps to be taken to stop the premises from being an HMO, and the local authority must be satisfied that these steps will be successful. The HMO does not need a licence during the term of the order, which is three months unless extended for no more than one further period of three months in exceptional circumstances. The order may require the owner to carry out work to improve the safety or security of the occupants for the duration of the order. This could involve minor works or the provision of removable equipment where licence conditions would normally require permanent, fixed items. No fee may be charged for a temporary exemption order.

Rent Suspension Order

5.2.11             When an HMO is not licensed, the local authority can make a rent suspension order, whereby the authority serves a notice so no rent is payable in relation to the HMO.

5.2.12             The local authority might also consider working with the owner to agree low-cost temporary measures to improve conditions in the property in the meantime. For example, an agreed type of portable heater provided in the absence of safe, fixed, space heaters. The Local Authority should also liaise with the Fire and Rescue Authority to ensure adequate safety systems are put in place.

Prosecution

5.2.13             The ultimate sanction in the licensing regime is prosecution. Licensing officers should take care, in carrying out inspections or investigations into suspected unlicensed HMOs, that any evidence is collected in such a way that it would be admissible in court, if necessary. For example, to demonstrate that living accommodation which is suspected to be an unlicensed HMO does indeed satisfy the definition of HMO in the 2006 Act.  It may be helpful for officers to meet with the Procurator Fiscal to discuss what he or she would look for in preparing a case. Reports to the Procurator Fiscal – a Guide for Specialist Reporting Agencies (seventh edition, 2006) provides guidance on all the information to be included in reports to the Procurator Fiscal. Authorities should also have a note of the relevant charge codes and wording for the relevant offences.

5.2.14             Local authorities may also find it beneficial to verify ownership of a property. It is the owner who should apply for a licence, but where the HMO owner has a criminal record or would likely be considered not to be a ‘fit and proper’ person, they may seek to conceal themselves behind another applicant.

5.2.15             Prosecution can be a lengthy process, and occupiers should not be subject to dangerous or unfit conditions in the meantime. If necessary, local authorities should also consider using other powers, or asking the fire and rescue authority to use their powers, to require improvements to be made or that the property be closed down.

5.2.16             Local authorities should be careful to avoid real or perceived conflicts of interest, for example where a suspected unlicensed HMO is operated by the local authority itself, or in any dealings with former council staff. The local authority has a duty to enforce HMO licensing impartially.

5.2.17             The local authority should therefore ensure that it has appropriate mechanisms in place to ensure that it enforces HMO licensing for local authority owned properties as it would for any other HMO owner. It may therefore be useful to separate out the line management chains.

5.3       DEALING WITH COMPLAINTS

5.3.1   Serious complaints may lead directly to enforcement action against the owner. Alternatively, a record of more minor complaints about a particular HMO may have an effect on the local authority’s decision when a subsequent application for a licence in respect of the premises is submitted. It may be helpful to establish liaison arrangements with anti-social behaviour teams or police. Similarly, some complaints made to HMO licensing officers may be more appropriately dealt with by anti-social behaviour teams or the police.

5.3.2   The local authority is likely to receive complaints about HMOs or suspected HMOs for a number of reasons. Occupiers may make complaints about the condition of the property or the actions of the owner. Neighbours may be concerned about the number of people in the property and their living conditions, or about noise and disturbance or anti-social behaviour attributed to the residents of the HMO or people visiting the property. In tenement situations, in particular, neighbours may also make complaints about maintenance, cleaning of common areas, accumulations of refuse and water ingress.

5.3.3   Local authorities should keep a record of complaints, and investigate where this is considered appropriate. Complaints may bring to light HMOs which the authority was not previously aware of. They may also lead to the discovery of breaches of licensing conditions.