David Smith of Anthony Gold tells about one of his successful cases and how it can help you if you are an HMO landlord in Oxford
HMO licensing fees are a significant cost for many landlords. However, it now seems that some local authorities have been charging fees which are unlawful.
The power to charge a fees in respect of HMO licensing is found in s63 of the Housing Act 2004. Importantly, this power is granted in respect of licence applications only.
However, a number of local authorities charge fees for other matters associated with HMO licensing other than the direct grant of a licence. For example, Oxford City Council has sought to charge a fee for the variation of an HMO licence.
A case in the High Court recently (which actually related to the licensing of sex shops!) it has been clearly established that a council can only charge a fee for something they are explicitly authorised in a piece of legislation to charge a fee for.
On the back of this decision, as well as for other reasons, I brought a case against Oxford City Council for refusal to vary an HMO licence. As part of this case there was a dispute about whether Oxford could charge a fee for the variation.
Ultimately the Residential Property Tribunal (RPT) ruled that the fee was unlawful and that it could not be charged.
Oxford has amended its fee structure and has stated that it will not charge a fee for an HMO licence variation from 1 September 2013. However the RPT decision was made in March and, more importantly, if the variation fee is unlawful then it was always unlawful and should never have been charged. This means that it is refundable.
Anyone who has paid a fee to Oxford City Council for an HMO licence variation is entitled to recover this money. Anyone who has paid for the variation of an HMO licence with another council is also entitled to their money back. See below for suggested draft letter which you may like to use.
I write to you in regard to the fee of £<<insert fee paid>> as an HMO licence variation fee on <<insert payment date>> with respect to my property at <<insert property address>>.
I note the decision of the RPT in Crompton v Oxford City Council (CAM/38UC/HMV/2013/0006-7) in which it was held that a fee to vary an HMO licence was unlawful and beyond the power of the Council to charge.
It is accepted law that monies obtained by unlawfully agreement cannot be retained. Accordingly, I look forward to the return of the above-mentioned fee from the Council within 14 days of the date of this letter.